§ 4.49 p.m.
§ House again in Committee.
§ LORD HALEOne question was put by some of my noble friends to the noble and learned Lord, who made a very helpful and lucid speech but who, with respect, did not go quite far enough in one particular direction. It was said in another place—and I do not know that it has ever been specifically denied—that in this clause we go further in subjecting our laws to Community laws than any other member of the Community has ever done. The noble and learned Lord the Lord Chancellor mentioned only one case. He mentioned the article in the Modern Law Review. I apologise if I have to mention law, but this is a ques- 790 tion of law. He mentioned the case of van Gend en Loos v. Administration fiscale Neérlandaise, which was a 1963 decision. It is the first case mentioned by the writer of the article, Mr. Gerhard Bebr, who is said to be one of the legal advisers of the Commission. There was the normal note to say that he was not speaking on behalf of the Commission; he was expressing his own views which must be viewed with great respect. The van Gend en Loos case is his introduction to his theme which is the power of these laws, the power of making laws, and the power of the court is growing—and he is delighted about it—case by case.
He goes on to quote the series of cases; I do not want to bore your Lordships with them. Surely a very important case was that on Italian nationalisation, the Flaminio Costa case. There is another which he does not mention, as one can well understand, but which Professor Wade mentions. This was a decision in relation to Algerian fiscal arrangements upon which the Court of Luxembourg pronounced. The French Conseil d' Etat said that they were not taking any notice of it and that they were permitted to do so. One of the reasons for this was the power of the French Conseil d' Etat, which has varied under various republics and monarchies, as laid down in the Constitution of the Fifth Republic.
With very great respect to the noble and learned Lord, Mr. Gerhard Bebr finishes with an account of the German case. That was the case of Internationale Handelsgesellschaftwhich may not yet be finished. It involved an export licence for 20,000 tons of cereals granted in 1967. Under the rules it should have been accompanied by a deposit as a guarantee of execution of a limited licence; one of the litigants had not performed his duties under the licence by the time it expired. The question was whether he could be penalised. With three or four other collective cases that case went to the Luxembourg Tribunal in 1970. This is the judgment upon which Mr. Gerhard Bebr is making his comment when he says:
The Community did not hesitate to uphold the supremacy of the Community law even over national constitutional law.This is because Germany has what is called its basic law which basically is its 791 written Constitution. We have no written Constitution or anything like that. We only have an unwritten Constitution.The Advocate General, M. Alain Dutheiller de Lamothe, made a long submission. It is quite a serious submission and I am trying to make a serious point. One of the things to which he called attention was that it would be exceedingly unfortunate that a contract which was to be dealt with in six months in 1967 was still being argued before the Luxembourg Tribunal in 1970 and that this might be an unfortunate and unpleasant procedure for all people interested in merchandise law and in the execution of mercantile contracts. The Luxembourg Court said that they derived their authority not only from the written Treaty of Rome but from the spirit of the Treaty. They held quite definitely that the legislation in Germany which had been referred to them was in contravention of the law of the Community.
Unfortunately, the matter had not ended at the time Mr. Gerhard Bebr wrote his article. I have only just been able to find out what happened next. This is the judgment of the Verwaltungsgericht Frankfurt am Main on the case arising out of the permit of November 24, 1971. That judgment occupies 16 pages of the written report; there are 24 clauses in which they say that they do not care what the Court of Luxembourg has said, that this is still a contravention of the German Constitution and that as a national court they are bound by the German Constitution. Under this clause in our Bill, if it is passed, all this would be lawful in the United Kingdom because we do not have a Constitution. We have nothing to bar any regulations. It said in Clause 9:
This Chamber cannot agree with the decision of the European Court. It considers the Community provisions cited to be unconstitutional. It remains to be said that neither this Chamber nor"—there follows another body with a very long German name—is bound by a preliminary ruling of the European Court. A preliminary ruling would not have the force of law such as decisions of the Bunclesverfassungsgericht."The position is that the German courts can say that they are not going to take any notice of the Court of Luxembourg and that this infringes their written 792 Constitution. The Italian court, as I understand, did not accept in toto; there was negotiation over the electricity case. The French Conseil d'Etat say that they are not going to take any notice at all and that they will carry on with their policy in relation to Algeria whatever the Court of Luxembourg says. Yet in an act of almost supreme statutory abnegation we are saying in this clause that we will be bound by every rule, right, obligation, and, as I understand it, even every opinion expressed by the court formally in response to a British application and by every regulation made by the Commission.I said that I would not criticise, and I have not. I am seeking information but I am giving to the Committee the limited amount of information I have available at the moment and asking what the position is. I should like to know whether the complex of the various courts has been resolved, whether any agreement has been reached or whether it is really true that under Clause 2 of the Bill we are submitting ourselves to a whole series of obligations which do not necessarily and totally bind the other countries.
LORD DE CLIFFORDMay I ask one very small question of the noble and learned Lord? During the course of his speech, of which a considerable amount went over my head but which I admired greatly, he referred to a case being brought before the British courts; the decision made on it was objected to and it then went to the Court at Luxembourg. What is the basic language in which all these Treaties, regulations, et cetera, are written? Are they in French or in English? Do the courts have to take the English wording or the wording of the original language? I am sorry if I am asking a rather stupid question.
§ THE LORD CHANCELLORThe languages of all member-States which have separate languages are official languages. From accession there will be an official English version.
§ LORD STOW HILLMay I reply—
§ LORD SHACKLETONI should like to speak. Is my noble friend hoping to end the debate?
§ THE LORD CHANCELLORLet us get this clear. I was hoping that the debate would continue until no other noble Lord wanted to speak. I do not want to stop the noble and learned Lord, Lord Stow Hill, making a second speech. This is a Committee stage but I thought that two or three noble Lords behind the Leader of the Opposition were showing signs of getting up.
§ LORD CHORLEYThe noble Lord who raised the question about the language has raised a very important point. All laws have to be interpreted, whether they come from the Treaty of Rome or wherever they come from. An effort has been made by the opponents of our going into Europe to create a state of alarm and despondency by this theory that matters are immediately applicable in England. They cannot be. They must be brought home to the people to whom they are going to apply—and that must be done in language. All these other earlier laws which we are accepting are not in English. They must be put into English so that the English people to whom they are applying can understand them. It may well be that there is great difficulty about coming to a firm conclusion as to the obligation that they in fact establish. That is of course where there has to be a supreme court—the Court of Luxembourg. That is the whole point, as the noble and learned Lord pointed out. His analogy about the law merchant was an interesting one. The law merchant, which was in mediaeval Europe a general system, was broken up by the growth of national States. But in the last century—and this is interesting—there was a movement back towards establishing uniformity, at any rate in connection with maritime law, of which the leaders were we in England. The most recent example of this movement back was the Carriage of Goods by Sea Act, which, although it is called "The Hague Rules", was in fact created in London. An interesting point about this Carriage of Goods by Sea Act is that it has been adopted by all the maritime States and applies to anyone throughout the world; it has been interpreted by national courts all over the world, too, in the light of the decisions made by the English courts. In that way uniformity has been obtained.
794 The Treaty of Rome and E.E.C. law is really just a continuation of this process. It is widening it out. After all, the Scandinavians knew quite well that the commercial judge in London was the most eminent man on matters of this kind and when he gave a decision on some point arising under a bill of lading they by and large accepted it. Now we are in the position of joining a Common Market which has a Supreme Court in Luxembourg, and we are going to accept what that Court lays down. We are going to have a judge on it soon, and I am quite sure—because these matters are largely commercial ones—that our judge.who will be a very experienced man, will quickly become a weighty influence in that Court. I would reply to my noble friend Lord Hale that we are in no different position from anybody else. It may well be that there is a dispute from time to time about the British Constitution. He is quite wrong in saying that there is not a British Constitution; of course there is—
§ LORD HALEIf the noble Lord will forgive me for intervening, I said, "No written Constitution"; and the laws are already printed in 42 volumes, with an index, and further volumes are coming out.
§ LORD CHORLEYOf course they are. The laws of England amount to a great deal more than 42 volumes. The area of this legislation is quite a narrow one.
I was speaking to a prominent commercial lawyer only a day or two ago, one of the most eminent commercial solicitors in the City of London, with close connections with Germany. He said that it is a scandal the way the opponents of our going into Europe are trying to frighten the legal profession in England into believing that they must adopt a whole system of new law. The area of this law which is going to impinge on English lawyers is a comparatively small one. This man said: "Only last week in Germany I put it to one of the most eminent commercial lawyers practising in the Rhineland: ' In how many cases which have come before you as a practical lawyer since the Common Market came into force among the Six have you had to take into account the Treaty of Rome and the regulations and 795 laws emanating from Brussels? ' The man thought for a few minutes and then said, ' I think about three '."That is a very significant statement.
It is quite true, as my noble friend Lord Hale was saying, that the law is being built up. That is happening all the time. Even a treaty as long as the Treaty of Rome and these forty-two volumes cannot lay out the law all at once, even over a period of fifteen years. It is rather like the American Constitution. The American Constitution came into force in about 1790, and even after twenty years, indeed even after about 200 years, all sorts of points are arising upon it. The Supreme Court in America has been the great moulding force. It has been doing this work, just as the Court at Luxembourg is going to do it. About twenty years after the American Constitution had come into force a case came before the Supreme Court in which one man said, "This is not in the Constitution and therefore this decision which has been given to me by the lower court is wrong". The Chief Justice at that time, perhaps the greatest of all American Chief Justices, Marshall, said, "We must not forget that it is the Constitution we are expounding". That has been the leitmotiv in the work of the Supreme Court ever since that time. One spells out from the document which is the Constitution what are the rights and obligations of the citizens of the different States in the United States: and in the same kind of way there will be spelt out at Luxembourg what are the rights and obligations.
We ought to remember these facts and not assume that the whole thing is a trap in which the English can be caught. This is a free, voluntary union into which we are entering with other Great States of Europe in order to improve our legal position and in many ways our cultural heritage. This assertion that, "They are just leading us up the garden path and everything is going to be done for the purpose of breaking up the English" is the most dangerous and nonsensical attitude to take. I hope that this point can be got over to the people of England. instead of trying to frighten them into the mood of fear and despondency which is being deliberately worked up and which is so vicious and dangerous.
§ 5.7 p.m.
§ LORD SHINWELLSo far as this Bill is concerned there is only one kind of language that is applicable, and that is bad language. When I listened to the noble Lord just now I was fortified in the contention I ventured to make in the Second Reading debate: that this is going to be a lawyers' paradise. It is so now and it is going to remain so for some considerable time to come. What has been said has nothing to do with the Amendment. We are not discussing the Constitution because we have not got it. If my noble friend referred to the English Constitution or the British Constitution I would say that we do not happen to possess any Constitution.
§ LORD CHORLEYOf course we do.
§ LORD SHINWELLAll right. Let the noble Lord enjoy himself with the British Constitution. But I was never aware of it, and am not aware of it now. Of course we have rules and regulations and a way of life and a way of civilised behavour. But when it comes to a written Constitution, I think that the noble and learned Lord the Lord Chancellor will agree with me, if he agrees with nothing else I venture to say, past, present or future, that we have not got a Constitution, whatever else we may possess. So much for that. In saying that, I dismiss the whole of the speech to which we have just listened, in particular the reference to the nonsensical attitude of those who offer any objection to the loss of our sovereignty, freedom and liberties. If there is any nonsense it is on the part of those fanatical and aggressive and emotional pro-Common Marketeers. We have just listened to a speech from one.
Now let us get on with the Amendment. We listened to a lengthy dissertation of a legal character from the noble and learned Lord the Lord Chancellor. He said he was doing his best, which reminded me of the old saying, "Don't shoot the pianist. He's doing his best!" But the one thing he failed to do was to convince. He convinced himself, of course. That never did present him with any difficulty—and I have known him for a long time; probably for longer than anybody else in this Assembly. He has ability; we know that—he would not have got where he is if he had not. All he succeeded in doing was to convince 797 himself. But a layman such as myself is completely unconvinced. He was replying to a question from my noble and learned friend Lord Stow Hill, but the one thing he failed to do was to deal with the Amendment. It is a pity that he did not respond more favourably to the suggestion that I made early in the debate, that instead of arguing against the Amendment—or purporting to argue against it—he might have explained what is meant by this clause, but lie failed to do so.
Let us now deal with the substance of the clause and with the content of the Amendment. It is just as well that it be read out. After all, the noble and learned Lord the Lord Chancellor took a long time to explain it, and perhaps I may be permitted to read the Amendment, if even my noble friend Lord Chorley can appreciate it. Subsection (1) states:
All such rights"—no qualifications or affirmations there—powers"—whatever the powers might be. I do not understand this, but then I did not draft it and I had nothing to do with the Amendment—liabilities, obligations and restrictions"—And now I come to the part that I should deliberately like to put in brackets because it is the subject under review. We should look at the Amendment itself from this particular aspect—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,…Although I am opposed to British entry into the Common Market I can understand the motivation of those who are in favour of entering it, despite the fact that we are in a dire situation ourselves, almost in a bankrupt situation and in a great deal of trouble. Of course there is no trouble in any other part of the world, not even in Italy or in France, and therefore we have to go into the Common Market and accept the abandonment of our sovereignty.I can understand the Treaty of Accession. We have had a decision in the other place and we have had one in your Lordships' House. We have not had one from the country but we will leave that aside for the moment. We have a 798 decision of Parliament in regard to the Treaty of Accession and by that decision we accept 248 Articles, apart from a great many other directives, regulations and rules about which we know nothing but which we are bound to accept by accepting the Treaty of Accession. The one thing to which I am opposed, and I hope many of your Lordships are also opposed, is accepting something about which we know nothing at all, which is in the foreseeable or remote future and which, in effect, means something to which we did not agree and which has not been negotiated. There has never been a word of negotiation, so far as we know.
Something is contained in the Bill which means that we have to accept regulations and rules and directives—in effect, modified Treaties, or indeed substantial Treaties—about which we know nothing at all. The other place and your Lordships' House and the country at large—our sovereign Assemblies and our civilised public—have had no part at all in deciding what is to be done in future. Accept the Treaty of Accession—very well, but do not go beyond that.
I want to say a word about something which the noble and learned Lord the Lord Chancellor said in his speech on Thursday night. I left a little after 10 o'clock and so I was unable to hear his speech, but I read it and I would direct attention to something he said. During the debate the noble and learned Lord objected to what my noble friend Lord Balogh said. He said that my noble friend spoke offensively, but sometimes he is inclined to indulge in offensive observations himself. However, I do not want to go into that in depth, at this stage anyway.
I want to refer instead to something which the noble and learned Lord said about our sovereignty. He produced the most amazing argument; I have never heard anything like it before, not even from him. He said that we express our sovereignty by agreeing to abandon our sovereignty. If noble Lords do not accept what I have said I shall read it out. Of course he took a long time to say what I have said in a sentence, but then I have not got the forensic ability or the long years of study that the noble and learned Lord has had. I am just a 799 layman with horse sense—common sense. I will read out what he said:
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."—(OFFICIAL REPORT; 3 /8 /72, col. 601.)That is to say, that Parliament expresses its sovereignty by agreeing to the Treaty of Accession—to the 248 Articles with the Schedules and the directives and the annexes and all the rest of it. We express our sovereignty by agreeing with this—that is what he said.There has been a great deal of argument as to exactly what is meant by "sovereignty". NATO has been mentioned, and also the United Nations and Treaties that British Governments have entered into, but there is not a single one of those Treaties or Agreements, historically remote or not so remote, which is not reversible. We can withdraw from them at any time. Our agreement with NATO provided that we could withdraw our troops if at any time it was essential to do so, and indeed we have done so. We have withdrawn far more troops than was anticipated in order to send them to Ulster. There is not a single Treaty which this Government or any other Government have entered into that is irreversible. We could reverse them at any time.
But when we come to the Treaty of Rome, what do they say? Entering into this Treaty, with all that it means, is of unlimited duration. If that means anything at all it means that we cannot come out. It is a great pity that the Treaty of Rome was not made available by the Government, the Conservative Party and the pro-Common Marketeers in a form that could be understood by the people of this country. I personally doubt whether it is fully understood even by every Member of your Lordships' House. I wonder whether every Member of your Lordships' House has read every one of the Articles and has sought to interpret them without the aid of members of the legal profession.
Now, what are we to say about this Amendment? To me the Amendment is objectionable because as I understand the position of my noble friend Lord Stow Hill he is anxious that we should enter 800 the Common Market. He is anxious that we should improve this Bill, and this leads me to the final few sentences in which I wish to indulge. Time and time again in the course of our debates we have spoken about the function of your Lordships' House as a Revising Chamber, and it has been suggested many times that we could improve the Bill. The intention of my noble friend Lord Stow Hill is to improve the Bill, but I cannot see how the measure will be improved by this Amendment. In my view there is only one way to improve the Bill to make the position clear beyond doubt, and that is to have nothing whatever to do with entering the E.E.C. However, I do not want to make what might be regarded as a Second Reading speech.
If we are to revise, improve or in any other way modify the Bill we are at the very least entitled to clear explanations, leaving no doubt in anyone's mind about what it is all about. Such explanations we have not had, and for that and other reasons I cannot support the Bill. Nor, however, can I support the Amendment because it does not mean very much. I object to the terms of the clause as a whole because it says, in effect, "When Britain enters the Common Market it will accept the Treaty of Rome and all the paraphernalia associated with it, along with anything that comes thereafter, determined not by Britain but by the Commission and Council of Ministers." I object to that.
§ LORD BERNSTEINI do not intend at this stage to comment on the points made by recent speakers. When we come to Clause 9. which deals with commercial matters, noble Lords who are interested in industry will no doubt have something to say about commerce in so far as it relates to the Common Market. In his Second Reading speech, the noble and learned Lord the Lord Chancellor said:
… Parliament, after exhaustive public and private discussion, committed the honour of this country to entry on the terms negotiated.He went on to say that the way in which the Bill was drafted was… the only practicable, and at least the only acceptable, way of achieving that purpose."—[OFFICIAL REPORT, 25/7/72, col. 1225].Is this really the only way of achieving that purpose, leaving aside the question of honouring our commitment? In the 801 other place there were endless debates about whether the way in which the Bill was drafted was in fact the only way of achieving that purpose. The Government said that the Bill had been drafted by them and not on instructions from the Community. Many Members in another place said that the Bill overlapped in many ways, lacked clarity and was too wide in its scope, which would result in many interpretations being placed on its provisions. There can be no doubt that the basic powers rest with the Council of Ministers and the Commission. Nobody has said otherwise.I believe that the Amendment would, if accepted, improve the Bill and not affect the need for us to honour our commitment. The Lord Chancellor referred to the committee system, while in another place there was much reference to an ad hoc type of organisation. It seems surprising that the Government thought of these things only at the last moment and could not find anything in the Bill of that nature to help them. The Lord Chancellor then spoke of a new legal concept. As a layman, I always understood that new legal concepts had eventually to stand the acid test of the House of Lords and the Law Lords. What will happen as a result of the Bill we have not been told. If we wish our future partners in the E.E.C. to respect us, we could ensure that respect in several ways; knowledge of the past and great battles fought and won, our general behaviour in times of stress and our great inventiveness. All these things have helped to form the character of the people of this country. I suggest that they might also respect us for our skill in negotiating and for our skill in producing a Bill which is clear, understandable, unambiguous and which still honours a commitment made.
The noble Earl, Lord Jellicoe, has told us that the Bill represents the terms which we have accepted for entry into the Community. I wonder just who knows what are the terms to which we have agreed; and we still await a reply to the question I asked last Thursday and again today. It is a simple question: "What are other Parliaments doing?" I do not see how we can accept Clause 2 or any part of it until we know the facts about Parliamentary restrictions placed on other countries in the Community—so as to 802 be sure that we are being treated as equals. For example, have we offered too much too soon? Until the Government clarify the clause I will feel obliged to vote for the Amendment, and I hope that noble Lords opposite who have the same desire for clarity will do the same.
§ 5.27 p.m.
§ LORD SHACKLETONI thank the noble and learned Lord the Lord Chancellor for assisting with what I can only call a clear tutorial lecture on the meaning of the subsection. Perhaps I may change the metaphor and conduct a viva with him because this subsection is crucial to the Bill and is not easy to understand. Indeed, I am not at all satisfied that its drafting provides satisfactory legislation which is clear from the standpoint of Parliament. It may be clear from the standpoint of the courts, although my noble friend Lord Beswick referred to a number of different opinions about that. At any rate, it is certainly not clear from the standpoint of Parliamentary control.
Having said that, it might be helpful if I were to give my personal understanding of what the subsection is all about. I take it that it refers to all those regulations or directives—except directives specifically calling for legislation—and decisions or Treaties which are directly applicable and which take effect without further enactment as if they were the law of this land; in other words, from the moment of publication they become binding either on this country or on the citizens of this country. I hope I am correct so far. I appreciate that it may be difficult for the obtuse pupil that I am to appreciate all these matters and that I may be straining the patience of the Government Front Bench. I can only say that the Government have been patient with me, and if I am right so far I will go on to develop my doubts about the subsection. It begins with the all-embracing phrase:
All such rights, powers, liabilities, obligations and restrictions …and we are talking about future ones. I take it that the past is past and that the provision is referring to future obligations and so on.
§ THE LORD CHANCELLORIt refers to both the future and the past.
§ LORD SHACKLETONI am obliged to the noble and learned Lord for making that clear. We are, however, primarily concerned with the future. I suppose that to the greatest extent these changes will be made by regulations. We must, in considering this matter, look, if only briefly, at subsection (2). That clearly applies to certain categories of regulation and possibly directive in that subject to Schedule 2 there are certain types of obligation, liability or restriction to which it will be necessary to give effect by some form of legislative process, perhaps by subordinate legislation if it comes within the categories of Schedule 2 which are excluded by the main legislation. Difficulty arises over what will be automatically applicable. One assumes that they will be automatically applicable unless intrinsically they cannot become applicable and a regulation must be introduced. If this is so, it is intelligible but it does not tell us what those regulations are likely to be. Furthermore, there are no provisions in this Bill for informing Parliament of them. Clearly, if there is to be an order under subsection (2) Parliament will have to be informed because it will have to pass it. But in the directly applicable law this will not be necessary.
The noble and learned Lord the Lord Chancellor emphasised that this new Community law, the directly applicable law, was not part of the law of this country. As a layman I was unable to distinguish the significance of this statement and why it was important to emphasise it. After all a law, whether made by the Community or made by Parliament, which without further enactment is to be given legal effect or used in the United Kingdom, seems to me to be, for all practical purposes, the same as British law and I am wondering what is the significance of the distinction that the noble and learned Lord gave to this. If I may make one further point, it seems to me in any case to be a rather artificial distinction, because equally there may be an enforceable obligation which in order to give effect to it has to be the subject of either legislation or subordinate legislation in this country, in which case presumably it becomes part of British law.
This may be a completely unimportant point. I may be on what my noble friend Lord Shinwell would say was a 804 lawyers' point. But the noble and learned Lord gave some importance to this, and since it has some bearing on my subsequent remarks I wonder whether he would care to comment on it.
§ THE LORD CHANCELLORIt is difficult to comment without being either inaccurate or misleading. For a very long time and for very many purposes I have always treated the directly applicable law, as the noble Lord, Lord Stow Hill, treats it, as being part of the law of the country, simply because it is enforced, or is capable of being enforced, by the courts of this country. Theoretically that is wrong. From the practical point of view, from the point of view of the ordinary citizen, I dare say that is good enough and I do not complain that it should be done. If I were making a popular speech about it I could very likely do it myself. I was however trying very hard, in the speech I made earlier, to be strictly accurate, even at the expense sometimes of making points against myself.
Theoretically the situation is that it is a separate system of law applicable in this country and not part of the law of this country. As we get through some of the other Amendments I may be able to give better examples than the one I am just about to give, but the obvious example which occurs to me at this moment (perhaps the noble Lord who is fixing me with a basilisk stare can do better than I am doing) is the question of the rules of construction of documents and statutes which will be the rules of construction of the directly applicable law and will not necessarily be the same rules of construction as the Chancery Court would apply to an English will, or the Commercial Court would apply to an English contract. It will be the rules of construction as interpreted by Luxembourg. Probably it is within the knowledge of the noble Lord that the way they read statutes on the Continent is not the same as we read statutes here, which is one of the reasons why their Statute Law is rather shorter than our Statute Law. The other day I looked at M. Pleven's Legal Aid Bill which was not, I think, more than a quarter of the length of our principal statute. They have different rules of construction and it will be the rules of construction of the European Court that apply and not the 805 rules of construction which apply in English law. As we go along there may be other particular examples where the importance of the distinction may be apparent. But I was concerned in my first speech simply to state it as I thought it ought to be stated, in order to be entirely correct in strict legal theory; and I was not primarily concerned with the practical importance of the distinction.
§ LORD SHACKLETONI am grateful to the noble and learned Lord. I felt there was a significance in what he was saying in that somehow there was an implication that this perhaps rather alien law which we had to obey was at least not to get British citizenship, although it would have a sort of associated citizenship. But it seems to me (and I think the Lord Chancellor has confirmed this) that clearly it does affect the British citizen as if it were British law, although I take his point—and this is a further complication—that the rules of construction may be different. It will be interesting at some stage to hear some further comments on that aspect. No doubt the judges and others will know under which law they are operating although if they are looking at the vires of a particular measure it may be difficult if there are two different sets of rules of construction. I think that is about as far as I dare go on this particular subject. It certainly seems to me that the inference under Article 85, the application of unequal conditions to parties undertaking equivalent engagements in commercial transactions, is forbidden. That seems to me to all intents and purposes to be a pretty decisive rule of competition, and for practical purposes people will regard that as British law.
The noble and learned Lord referred to M. Pleven's Bill. Was that a French Bill?
§ THE LORD CHANCELLORYes, I was only giving an example. It was M. Pleven's purely French Bill about French legal aid. When I went to Paris quite recently for the 25th anniversary of UNESCO I was most hospitably received by M. Pleven. as I think I told the House in a Statement. In the course of our conversation he showed me what was then a draft projet de loi of his legal aid system. and asked me questions about our system in order that he might deal 806 with some criticisms of his proposals which were being made by the legal profession. I gave that as an example of the fact that when the French pass a law they do it in very much less detail than we do. As I say, my recollection is that it was something about a quarter of the length of ours. But it was a French law, and not a Common Market law. I was only pointing out that other systems of law interpret their Statutes in slightly different ways, and that we tend to take a very close view of the interpretation of Statutes which is not common on the Continent. The noble Lord asked me what I meant by the importance of the difference, the distinction I had drawn, and I gave an example which came most readily to my mind. It may not be the most important one, and I am not sure, as I said to begin with, that, apart from strict legal theory, I would attach enormous importance to the distinction I have drawn. But it is important to get it right, and a Minister speaking on behalf of the Crown should not state it wrongly. That is why I drew the distinction.
§ LORD SHACKLETONI am afraid that I am leading the House down legal by-ways but there is a point of some significance. Although I hesitate to use an inquisitorial approach to the noble and learned Lord, he has exposed himself in one or two respects, particularly in relation to French law. Having studied quite a number of French laws, I find them so much more intelligible in French than I do English laws in English; and this is a striking contrast of course to the particular subsection with which we are dealing now. Furthermore, the French proceed much more by subordinate legislation and decree; and of course they have a different constitutional set-up and a Conseil d'Etat which clearly takes authority of law. If there is a conflict between French law and the Community law, and if they consider that the French law is within the vires, if that is the right word, that is in fact superior.
§ LORD SHACKLETONMy noble friend Lord Hale did, I think, give a particular example.
§ THE LORD CHANCELLORI dealt with this point at some length in my Second Reading speech. It is of course the case that there is an unresolved conflict between the Community and the Conseil d'Etat in a particular case, but it would be wholly wrong to infer from that any general doctrine such as that which the noble Lord has now sought to enunciate, that the Conseil d'Etat does not give to the Community law in general the pre-eminence that is given by this subsection. There is a conflict in three cases, all of which were referred to in my Second Reading speech, in a particular kind of way between the written Constitution countries and the Community. I do not know how important it is, but it is not quite what the noble Lord has said.
§ LORD SHACKLETONThis does not reduce my anxieties at all, because there were many remarks that the noble and learned Lord made. We shall come on to, and concentrate on, it much more when we come to subsection (4), the position of a particular British law which may be made in the future, and the extent to which it may well be ultra viresunder this law.
Anyhow, I want now to move to the particular point that the noble and learned Lord, Lord Diplock was making, which applies particularly to this subsection. One of the difficulties in debating this subject is the amount of paper involved; it is beyond my Pelman patience capacity to find the relevant piece. The noble and learned Lord on Second Reading was referring to the difficulty of informing Parliament and the limitations that would affect Parliament if in fact the first they knew of a new obligation was when the Order was actually laid, and he pointed to the limitations that confront us in dealing with Orders.
The great majority of matters that are dealt with in subsection (1) will not come before Parliament at all. It may well be that a large number of them are essentially very minor matters. But we know that not only the Council can make regulations but so also can the Commission—although there is some doubt; my noble friend Lord Stow Hill is still doubtful as to whether the Commission can make regulations. But, looking through them, I find a large number 808 of regulations made by the Commission, and my anxiety increases when I hear the noble and learned Lord liken the Commission to the Civil Service, because it is specifically not like the British Civil Service; it has powers. No doubt there is communication, but they have an independence. Indeed an argument in favour of the Commission, if one is pro-Market, is that they take a European view. But we ought not to deceive ourselves as to whether they are an independent body and have power to make regulations. There is no provision in this Bill for informing Parliament of what those regulations are or what the obligations are.
My noble friend Lord Bernstein asked at the beginning of the debate what provisions there were in other countries, and it may well be that we shall be told this at some point or another. I have, if I can find it, the relevant Article from the German law which specifically provides that both the Bundestag and the Bundesrat should be informed. We have no such provision in this Bill. My objection—and we shall come on to this later—to this particular subsection is the absence of any provision whatsoever for informing Parliament what it is that the Commission are doing and the Council are doing, and enabling us to know, and indeed this is equally relevant to subsection (2).
We have a number of Amendments down to this subsection, which is an extremely important one. I know the Government Front Bench think it is right that we should examine it at some length. It may well be that the noble and learned Lord, or the noble Viscount, Lord Colville, will be able to relieve some of my anxieties with regard to the subsection. The noble and learned Lord knows that I am in favour of going into Europe, but I did not expect in the legislation a clause of this kind, which is so wide and so unspecific; it does not specify the kind of regulation, it does not specify the kind of decision. It does not distinguish between those directly applicable which will not require legislation. Statutory Instruments, and others intrinsically in the particular subject; we do not know what they are. I do not know what my noble friends want to do. It was not my original thought that I should want to vote against this particular subsection, which is a key one to the Bill; but in the light of such discussion as we have 809 had and unless the Government can answer some of the points in regard to this subsection, particularly in regard to informing Parliament, if my noble friends do wish to register a protest against the extremely tight, the over-tight, drafting of this subsection, I shall go with them.
§ 5.47 p.m.
§ THE LORD CHANCELLORThe noble Lord has expressed surprise at what is in this subsection, but I cannot think why. As I pointed out to the House on Second Reading, the subsection in all its essential provisions was foreshadowed in the Labour Government's White Paper and in the speech in this House by the noble and learned Lord, Lord Gardiner, and I gave the references (I have not them with me now) and the quotations in my Second Reading speech. So that I really do not think there is a very great deal in that.
§ LORD SHACKLETONIf I may interrupt the noble and learned Lord, if he were to read out the passages he gave then and this subsection he would find a very great difference. One is a declaration of intent and the other one is enforcing certain law without the sort of controls we would expect and without specifically stating what it is.
§ THE LORD CHANCELLORI should have thought they were exactly the same, and I would have read them out if I had had them readily available. I am quite convinced they are the same, although of course White Paper language is not the language of the Statutes, which this is. It is a little difficult to know what is worrying the noble Lord. Of course different countries have different Constitutions. I cannot give a review of the exact equivalent in the German act of accession, or in the case of the French or the Dutch or of Luxembourg, Italy or Belgium, exactly how in the light of their own legislative procedures, they have achieved the same result as we propose to achieve by this subsection. They are not identical but they achieve the same result.
It is, of course, true that I had to explain to the Committee on the last debate we had exactly why it was not appropriate, and, I repeat, it is not appropriate, to put reference to a committee system into an Act of Parliament. I hoped I had made that plain, but when the 810 noble Lord says there is no provision in the section for informing Parliament, to my mind that exactly covers the same point. We want Parliament to be informed; we want Parliament to be informed before the regulations which have direct effect or the regulations which have indirect effect come into force. That can only be done, I believe, in the kind of way the noble and learned Lord, Lord Diplock, suggested. As I said in my original speech, we are only too eager to await the moment when some constructive attitudes are struck by the Opposition so that we can get on with the provision of the necessary mechanisms.
§ LORD SHACKLETONIf I may interrupt the noble and learned Lord the Lord Chancellor at this point, he has convinced me that it is appropriate to put into a Statute a provision for a committee. He convinced me of that last week. But what I am saying is that there is no provision of the kind that is normal in a Statute for keeping Parliament informed. I have here, if he wants to see it—I will read it in German or in English as he wishes—the relevant article in the German law which makes it obligatory to inform Parliament of obligations of this kind.
§ THE LORD CHANCELLORI was fully aware of the provision of the German law, though not of all the others, and we may have to discuss it in a little more detail on Amendment No. 29, I think it is. But that does not help me for the purpose of the point I am now making. The German law does provide for quite a different Constitution in their Act for something connected with their committee system. That is what in effect it does; that is not appropriate to our Constitution. We want to create the mechanisms which are appropriate. The sooner we get rid of all this constitutional mystification and get down to constructive discussions, the happier I shall be. I do try to make the noble Lord appreciate this fact, that it is inherent in the notion of directly applicable law that it is applicable without anything prior being done at all, because it is part of the system of Community law which I was trying to describe. Therefore we cannot, in an Act which enables us to perform our obligations under the Treaty of Accession and under the Treaties to which 811 we have acceded, put in a prior condition because that would be contrary to the essential nature of the kind of obligation we are discussing.
If I may move on to the next point which the noble Lord made. I think there was only one error and not a particularly important one at the beginning of his speech. It is not all the obligations of the Treaty, or all the regulations, and still less all the decisions and directives to which effect is given in this subsection. The subsection 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.What I was trying to tell the Committee in my former speech was simply that not all the obligations of the Treaty are directly applicable; those which are applicable are those which are held by the Luxembourg Court to be complete and perfect. It is they, and only they, that are given direct effect and christened by a particular name under subsection (1). This is to give effect only to those things to which effect must be given if we are to discharge our international obligation, and to nothing else; and that is why the subsection is so tightly drawn. It is limited to what we have got to do and it does not extend to anything we have not got to do. In other words, it is as tightly drawn as it possibly can be.From recollection of what the noble Lord, Lord Hall, said, I tried to deal with his particular problem during my Second Reading speech. I pointed out that in cases where countries have a written Constitution, and may I now say in passing that I far prefer the phrase used by Lord Birkenhead in 1930, "a controlled Constitution" because we have a Constitution, pace the noble Lord Lord Shinwell, and most of it is written down, for instance in Magna Carta and other documents of that kind which were certainly in writing. In a controlled Constitution, in countries which have a written or controlled Constitution. there can be a conflict between the directly applicable theory of Community law and the terms of the written Constitution. I do not pretend that that has been fully resolved; its resolution will be a political problem 812 between the institutions of the Community and the country concerned according to the nature of the way the problem has arisen. It cannot happen that way in our Constitution because we have not got a controlled Constitution, although, as I have said, we have a Constitution and much of it is in writing.
The point at which conflict can occur is basically the same but it will occur in relation to the doctrine of the sovereignty of Parliament which is, in my judgment, unimpaired by this legislation. That is the point at which conflict could occur, and I have no doubt whatever, subject to the rule of construction in Clause 2 subsection (4), to which we shall come, that it is completely unimpaired by this piece of legislation. I feel confident of that. But we cannot have the same kind of conflict—or, rather, the same kind of conflict cannot occur in the same kind of way—because we do not have a controlled Constitution. But conflict can occur in a different kind of way if it is basic to the same conflict with our unwritten Constitution. The fundamental dogma of our unwritten Constitution is the sovereignty of the Queen in Parliament, just as there are many written dogmas in the controlled Constitutions as to the precise functions of the institutions created by the Constitution. I hope I have made that as clear as it is capable of being made—
§ LORD SHACKLETONDid the noble and learned Lord the Lord Chancellor say that there could be a conflict with the unwritten concept of the sovereignty of the Queen in Parliament?
§ THE LORD CHANCELLORWhat I intended to say was that clearly there could be a moment, to which we shall come when we are discussing subsection (4), at which Parliament might deliberately intend to break its international obligations. I do not mean inadvertently or by virtue of a rule of construction by which a later Statute takes pre-eminence in English law over an earlier Statute; I mean a moment at which a British Act of Parliament deliberately set out to break its international obligations. That can happen in relation to any Treaty you choose to name, including this one. As the noble and learned Lord, Lord Gardiner, pointed out in his rather similar speech some five years ago, the point is that this legislation does not impair the 813 sovereignty of Parliament and there is no doubt, whatever might be true of the consequences of what we did, which of the two doctrines the courts would then have to apply, because the courts are obviously caught, as is every institution within this country, by the terms of our Constitution, written or unwritten.
I hope that I have made that as plain as it is capable of being made. If there
§ are any other points I can help with I certainly will do my best, but I have done my best to answer them so far as in me lies.
§ 6.0 p.m.
§ On Question, Whether the said Amendment (No. 14) shall be agreed to?
§ Their Lordships divided: Contents, 39; Not-Contents, 127.
815| CONTENTS | ||
| Balogh, L. | Greenwood of Rossendale, L. | Rusholme, L. |
| Bernstein, L. | Hale, L. | Serota, Bs. |
| Beswick, L. | Hall, V. | Shackleton, L. |
| Blyton, L. | Hoy, L. | Slater, L. |
| Brockway, L. | Lauderdale, E. | Stocks, Bs. |
| Buckinghamshire, E. | Leatherland, L. | Strabolgi, L. |
| Champion, L. | Lee of Asheridge, Bs. | Summerskill. Bs. |
| Collison, L. | Lindsay of Birker, L. | Taylor of Mansfield, L. |
| Davies of Leek, L. | Lloyd of Hampstead, L. | Watkins, L. |
| Fiske, L. | McLeavy, L. | Wells-Pestell, L. |
| Gaitskell, Bs. | Maelor, L. | White, Bs. |
| Garnsworthy, L. [Teller.] | Phillips, Bs. [Teller.] | Woolley, L. |
| Granville of Eye, L. | Popplewell, L. | Wynne-Jones, L. |
| NOT-CONTENTS | ||
| Aberdare, L. | Dundee, E. | Monk Bretton, L. |
| Ailwyn, L. | Ebbisham, L. | Mowbray and Stourton, L.[Teller.] |
| Albemarle, E. | Eccles, V. | |
| Alport, L. | Elles, Bs. | Napier and Ettrick, L. |
| Amory, V. | Emmet of Amberlev. Bs. | Netherthorpe, L. |
| Ashbourne. L | Falmouth, V. | Northchurch, Bs. |
| Astor of Hever, L. | Ferrers, E. | Nugent of Guildford, L. |
| Balerno, L. | Fortescue, E. | Ogmore, L. |
| Barnby, L. | Gage, V. | Onslow, E. |
| Belhaven and Stenton, L. | Gainford, L. | Perth, E. |
| Belstead, L. | Gladwyn, L. | Polwarth, L. |
| Berkeley, Bs. | Goschen, V. | Rankeillour, L. |
| Bessborough, E. | Gowrie, E. | Reay, L. |
| Bethell, L. | Greenway, L. | Redmayne, L. |
| Blackford, L. | Grimston of Westbury, L. | Reigate, L. |
| Blake, L. | Hailsham of Saint Marylebone, L. (L. Chancellor.) | Remnant, L. |
| Bledisloe. V. | Rhyl, L. | |
| Boyd of Merton, V. | Hanworth, V. | Robbins, L. |
| Brecon, L. | Harvey of Prestbury, L. | Rootes, L. |
| Brentford, V. | Hawke, L. | Rothermere, V. |
| Brooke of Cumnor, L. | Hayter, L. | Rothes, E. |
| Brougham and Vaux, L. | Hives, L. | Ruthven of Freeland, Ly. |
| Camoys, L. | Hood, V. | St. Just, L. |
| Carrington, L. | Howard of Glossop, L. | Saint Oswald, L. |
| Chelmer, L. | Hunt, L. | Sandford, L. |
| Chorley, L. | Hylton-Foster, Bs. | Seear, Bs. |
| Clwyd, L. | Inchyra, L. | Selborne, E. |
| Colville of Culross, V. | Jellicoe, E. (L. Privy Seal.) | Selkirk, E. |
| Colyton, L. | Jessel, L. | Sempill, Ly. |
| Cottesloe. L. | Kemsley, V. | Shaftesbury, E. |
| Cowley, E. | Killearn, L. | Sherfield, L. |
| Craigavon, V. | Latymer, L. | Stonehaven, V. |
| Cranbrook, E. | Limerick, E. | Stradbroke, E. |
| Crathorne, L. | Listowel, E. | Strathclyde, L. |
| Croft, L. | Lothian, M. | Stratheden and Campbell, L. |
| Daventry, V. | Loudoun, C. | Swaythling, L. |
| Davidson. V. | Macleod of Borve, Bs. | Trevelyan, L. |
| Denham, L. [Teller] | Mancroft, L. | Tweedsmuir, L. |
| Derwent, L. | Merrivale, L. | Tweedsmuir of Belhelvie, Bs. |
| Drogheda, E. | Milverton, L. | Vestey, L. |
| Drumalbyn, L. | Monck, V. | Vivian, L |
| Wakefield of Kendal, L | Wolverton, L | Yarborough, E |
| Waldegrave, E | Wynford, L | Young, Bs |
Resolved in the negative, and Amendment disagreed to accordingly.
§ 6.8 p.m.
§
LORD STOW HILL moved Amendment No. 15:
Page 2, line 24, leave out from ("such") to end of line 25 and insert ("provisions of").
§ The noble and learned Lord said: I move Amendment No. 15, and in developing my argument on that may I similarly put the argument on Amendments Nos. 17, 18, 20 and 22? My object in moving these Amendments is really very similar to that which I had in mind in moving No. 14, namely, to elicit information and to ask Ministers what their thinking is on these matters. This group of Amendments would change Clause 2(1) in the sense that it would result in the subsection making directly applicable as part of our law only the regulations which are passed under Article 189 of the Rome Treaty. In other words, it would have the result of excluding reference to "rights, powers, liabilities" and so on, and limiting the application of the subsection to regulations only.
§ The noble and learned Lord the Lord Chancellor, in his very valuable speech on the last Amendment, indicated the general views of the Government as to the proper scope of subsection (1) of Clause 2, but in the course of that discussion it seemed to me that a number of matters emerged which required further elucidation. May I categorise them and ask the noble Viscount, if he is to reply, whether he would be so kind as to give the Government's thinking on those points? First, what was said in the course of the last discussion was that not all regulations become part of our law, I think that what was said in terms was that not all regulations become directly applicable. I slightly question that phrase; it seems to me to be one which is slightly ambiguous. I preferred the noble and learned Lord's later formulation of the position, when I think I remember him correctly to say that, although technically the situation is otherwise, the substance of the matter is that the regulation or provision of the Treaty, or whatever it is that one is talking about, becomes part of our law in the sense that it must govern the 816 activities of Her Majesty's subjects in this country. In that practical sense it becomes part of our law, and I myself would prefer that way of looking at it, which seems to me the more realistic way, than the use of the phrase "directly applicable", which seems capable of a considerable amount of ambiguity.
§ May I go back to my question? As I said, it was stated in the course of the last debate that not all regulations become, in that sense, part of our law (or directly applicable, as it was then put). I do not quite know how that view is reconcilable with the provisions of Article 189. Article 189, which I suppose is the article which is relied upon by Ministers as producing the result that regulations become part of our law, is applicable to all regulations without any distinction. I would have thought that, if one looks at the second paragraph of that article, it must have the result of making all regulations part of our law if it has the result of making any regulations part of our law. I ventured to question the precise scope of that language, and your Lordships may remember that I cited some comments from the Coster case on the meaning of Article 189. But what cannot be gainsaid is this: that in the language of Article 189 no distinction is drawn between one regulation and another. Now the explanation may be—and perhaps the noble Viscount will tell me whether I am right or wrong about this—one which I thought I heard in something that the noble and learned Lord the Lord Chancellor said during one of his addresses to your Lordships. What he said, if I remember correctly, was that some regulations are so formulated in their terms as themselves to necessitate further legislation; and it may be that he had in mind those regulations as regulations of which it could not be accurately predicted that they automatically became part of our law. That is the question I should like to put, and I should be grateful if the noble Viscount would be so kind as to furnish me with the answer.
§ The second question I would put is this. It relates to directives and to a statement which was made in the course of our debates that directives themselves 817 sometimes became part of our law in that sense. I am a little puzzled by that, because I read in the third paragraph of Article 189 that a directive shall be binding, as to the result to be achieved. upon each member-State, but the form and manner of enforcing it shall be a matter for the national authorities. That language seems to me to involve that the directive in form, in its own literal language, is not intended to become part of the law of any of the member-States. On the contrary, it is what it is described to be—a directive. It is a directive to the member-State that that member-State must alter its own law, choosing what language it thinks appropriate for that purpose, through its own legislative process, to give effect to the purpose towards which the directive is aimed. That is a very radical distinction, I should have thought, between the character of a directive and the character of a regulation. The distinction is precisely drawn. The regulation in its actual terms is to be part of the law: the directive in its actual terms, we are told, is not to be part of the law of the member-State; it is the converse: it is for the member-State to choose its own language and its own law to give effect to the directive. That is the second question.
§ The third question is one which arose incidentally but is, I think, of considerable importance, and that is a question which relates to the nature and powers of the Commission. Those powers are set out in one of the regulations, and I think, if I construe them correctly, they confer no power on the Commission to make regulations itself. Certainly, as has been said, the Commission formulates proposals, and it takes those proposals to the Council. It has a very independent and active existence of its own; it has precise tasks assigned to it. But if I read the Rome Treaty aright, the legislating power is vested solely in the Council. It is perfectly true that in some cases the Council can reject a proposal by the Commission only by a unanimous vote. That is a limitation on the powers of the Council, and I agree that it confers a considerable measure of authority on the Commission. But the actual powers of the Commission are set out in Article 155 and those powers, if I may go through them, are to ensure that the provisions of the Treaty and the measures taken by the institutions by virtue of the Treaty 818 are carried out; to formulate recommendations or give opinions on matters within the scope of the Treaty if it expressly so provides, or if the Commission considers it necessary; to itself take decisions and, in the circumstances provided for in the Treaty, participate in the shaping of measures taken by the Council and by the Assembly; and to exercise the powers conferred on it by the Council to ensure effect being given to rules laid down by the latter.
§ I should be most grateful if the noble Viscount could indicate to the Committee whether there is something I have missed out. Is there something which extends the powers of the Commission beyond those powers formulated in Article 155 which I have just read out? If the answer to that question is "No", then it seems to me to follow that the Commission itself certainly has no power to legislate. It has power to formulate proposals, but it cannot make regulations—regulations being the legal framework of the Community. I think that that is a matter of considerable importance, because the Commission is not an elected body. It is not like the Assembly: it is not a body composed of the Ministers of the various member countries. It has been likened to a Civil Service. Perhaps that description should be amended by saying that it is a Civil Service with a very independent and important role—a role which it must exercise independently on its own judgment and which will lead it, generally, to recommending a proposal which the Council of Ministers must take seriously into account. I should be grateful if the noble Viscount would tell me whether I have correctly understood and formulated the position of the Commission.
§ LORD BALOGHMay I ask my noble friend, before he sits down, whether he intends voting for his own Amendment?
§ LORD STOW HILLI always keep an open mind in debate, listen to the counsel given by Ministers and allow my judgment to be influenced by the reasons propounded. I then decide whether I vote or whether I ask leave to withdraw the Amendment. I think that is the proper attitude in a legislative Chamber.
§ LORD LLOYD OF HAMPSTEADBefore my noble friend Lord Stow Hill sits down may I ask, in respect of 819 the legislative powers of the Commission, whether he has fully taken into account the provisions of Articles 189 and 190 of the Treaty itself? It seems to me that it is reasonably clear that the wording of those Articles does confer legislative power directly on the Commission. The first part of Article 189 reads:
In order to carry out their task and in accordance with the provisions of this Treaty, the Council and the Commission shall make regulations and issue directives …and so on.Article 190 reads:
Regulations, directives and decisions of the Council and of Ole Commissionshall state the reasons on which they are based, and so on. I should have thought, with great deference to my noble friend, that those Articles do indicate in reasonably plain language that the Commission itself has legislative power.
§ LORD STOW HILLMy noble friend asked me a question "before I sat down". In the circumstances perhaps the Committee will allow me to answer him. I considered the Articles most carefully and I see his point. My own view is that one has to read those words in Articles 189 and 190 in the light of and as qualified by the formulation of powers which I cited, and as qualified by various other provisions in the Treaty which make it perfectly clear that it is the Council which takes the final decision. May I give the Committee an example? Article 43, which deals with the Common Agricultural Policy, reads in the third paragraph of heading 2:
The Council shall, acting on a proposal of the Commission, and after consulting the Assembly, … adopt regulations or directives …That is the sort of phrasing very regularly repeated throughout the Treaty. My answer to my noble friend is that I thought that the wording he referred to should be qualified by those other passages.
VISCOUNT COLVILLE OF CULROSSI shall be happy to try to answer the questions put by the noble Lord, Lord Stow Hill. They are all important and I think that their elucidation may be of some assistance to a number of Members of the Committee. First, I hope the Committee will forgive me for not going through the terms of this selection of 820 Amendments but to use them in the way the noble Lord did as a platform to speak to his points. I think it is inevitable that the wording of Clause 2(1) should go beyond the scope of regulations made under Article 189. I will illustrate that, solely for the moment, by saying that there are other resources of directly applicable law which have been mentioned earlier in debates (which I shall revert to in a moment) which do not derive from Article 189. There are other Articles in the Treaty and other sources, and merely to limit it to regulalations made under Article 189 would be a mistake and would not be in accordance with what is now the directly applicable system of law which covers the other countries in the Community already. In their jurisdiction and jurisprudence there are sources accepted and recognised other than regulations under Article 189.
On the other hand, the noble Lord was a little puzzled by the apparent conflict between that wording in Article 189 which says that regulations shall be binding and what my noble and learned friend the Lord Chancellor said about there being occasions when further implementation had to be carried out by the member States, even in the case of regulations made by the Community. The answer to this, like the answer to so much of the difficulty of directly applicable law, is that—and I think that my noble and learned friend the Lord Chancellor said this earlier—one does not look at the form so much as at the substance. Even the form, however, may be helpful because in the case of regulations it is not uncommon for them very largely to be directly applicable but at the end, for instance, to say, "and the member States shall take certain steps to enforce this regulation
That does not mean that the earlier parts of the regulation are not directly applicable, but it may leave a certain amount of subordinate legislation, or indeed full legislation, in the hands of the member States in order to enforce what the regulation has imposed. That is what my noble and learned friend had in mind; not uncommonly, it comes at the end of a regulation. A regulation which says that new States shall "go away and enforce" requires some further action; it does not create any rights or 821 obligations on the people of this country but creates a right and obligation on the Government to bring in legislation to enforce that regulation. That is the way that one works.
The noble Lord then went on to ask about directives and suggested that these would almost certainly not be directly applicable. Again, as a rule, he is perfectly right; but if you look at substance rather than form you can get a case like the one called S.A.C.E. against the Italian Ministry of Finance, which was decided in 1971. Without going into the details of the case, there is in Article 13(2) of the E.E.C. Treaty a requirement to abolish certain customs duties. Then a directive, No. 31 of 1968, was issued and made the further supplementary provisions about this abolition of customs duties. The point about directive No. 31 of 1968 was that it applied only to Italy and gave a date when the obligation was to come into force. Therefore, after it had come into force the European Court said that, read together, Article 13(2), which laid down the general duty, and the directive, which applied it with a date in Italy, combined together to produce a directly applicable situation for the benefit of the Italian citizen. Therefore, you have two sources of indirectly applicable law, one an Article of the Treaty itself and one a directive sent specifically to Italy which, read together, had this effect. That is the sort of way it happens but it does not happen very often.
The third point the noble Lord made was about the power of the Commission to make regulations. I am grateful to the noble Lord, Lord Lloyd of Hampstead, for drawing attention to Articles 189 and 190. Article 155, which Lord Stow Hill mentioned, is perhaps the basic one and probably reinforces both the other two; it deals with rules. What happens is that the Commission make a fairly large number of ephemeral regulations, for instance, fixing the intervention price for various commodities within the Common Agricultural Policy, and that comes under the other instance the noble and learned Lord, Lord Stow Hill, mentioned, I think Article 43.
This intervention price is governed basically by a target price laid down by the Council but it has to be laid down by some temporary, subordinate regula- 822 tion made by the Commission over a fairly short period. So that you get this sort of situation where major policy is dealt with by the Council and the Commission are left to the day-to-day running of it, although in fact the rules they make are of the character of a regulation. There is another instance which the noble and learned Lord, Lord Stow Hill, might like to look at and which comes under Article 48(3)(d) of the E.E.C. Treaty.
Here we specifically have "conditions" as they are called, which would be embodied in implementing regulations to be drawn up by the Commission. These affect conditions under which a worker, having been employed in a member State, may remain in that State. There, again, are some very detailed matters about which the Commission would make regulations. So there are scattered about in the Treaty one or two examples of this sort where, under a general broad policy laid down by the Council, the Commission are left to use a regulation-making power in the detailed case. I think this is of assistance and that it is well documented in the Treaty itself.
Just to round this off, if I may, I think it would be useful if one looks at the terms of Clause 2(1) to see where one would get examples of the several legal words—"rights", "powers", and so on—which are set out in this subsection. I take these absolutely at random but in the right order. Regarding "rights", I have already explained that Article 13(2) held that the S.A.C.E. case creates rights in the Italian citizen relating to the abolition of customs charges or something equivalent to a customs charge. With "powers" you get, for instance, Article 9 of the E.E.C., Regulation 17, declaring as inapplicable Article 85(1), which concerns the restrictive agreement. One gets some powers here exercisable where the Agreement, which I think would otherwise have been restrictive, satisfies the requirement of Article 85(3). So you find that you get a "power" created this time by a regulation made under Article 85.
Regarding "obligations", again the first example that I have been given comes under a regulation relating to obligations laid on transport undertakings and their employees. They concern minimum ages and lengths of periods of continuous driving, and at the moment 823 relate only to international journeys. But you have that under regulations. Again there is a restriction that you can find in the regulations under Article 85. But for "procedures" you have to go back lo Article 177 of the Treaty because here you have the procedure on recourse to the European Court. And although it will not as a rule be directly in the hands of a citizen, nevertheless there are occasions when directives which give an exceptional right to go to the European Court are issued to an individual firm. There is also the case where an individual law suit in this country has a reference to the European Court, made in relation to it by the Court itself. So there are procedures and remedies in relation to the European Court which go back to the terms of the Treaty itself.
This, I think, indicates that we have a full range here of the kinds of directly applicable law. You can get it from the Treaty; you can get it, and usually would, by regulation; and you can occasionally get it from directives. As I said before, I have not an example of this, but I believe that you can get it, exceptionally, from a decision as well. That is why we say that the way Clause 2(1) is drafted covers all these possible sources which are identified by the European Court as being directly applicable; and why to modify the wording would be mistaken, because we should tend to miss out one of the possible sources, or confine it in such a way that we should not be able to comply with our undertaking to make all directly applicable law applicable in this country. I hope that that answers the specific questions of the noble and learned Lord, and at the same time I trust that it throws a little clarity on the way this works.
§ LORD STOW HILLI am most grateful to the noble Viscount for his answer, which I thought extremely helpful and full. On the powers of the Commission, he mentioned two cases in which the regulation-making power related only to subordinate matters—rates and so on. The first one he referred to is in Article 43. If I may say so, that is a power which may be exercised only by the Council—
§ LORD STOW HILLI am grateful to the noble Viscount, I should like to look at that. But he has entirely answered my questions, and in those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave,withdrawn.
§ 6.37 p.m.
§
THE EARL OF LAUDERDALE moved Amendment No. 16:
Page 2, line 25, leave out ("from time to time created or arising") and insert ("already created at the date of accession").
§ The noble Earl said: Reeling and dizzy from a whole term of legal tutorials squeezed into a few hours, I feel quite sure that it will be to the advantage and comfort of noble Lords if I may be allowed to refer to Amendments Nos. 16 and 19 together. Since I would hardly expect to get anything better than a delta treble-minus on the tutorials we have had, this Amendment raises not an obscure or difficult question of law but an exceedingly simple question of principle relating to the future; future actions, future obligations, as yet unwritten, as yet unknown, as yet unpredictable and, so it would seem, even without any statutory duty to tell Parliament.
§ My Amendment accepts what has been, has been. In Pilate's words: "O γεγραφα"—"What I have written, I have written." But the Amendment concentrates on the future and would limit this subsection to what has already been done. It makes the simple proposal—in a simple, ignorant kind of way which no doubt the Government will be able, and I hope willing, to polish up for Report—that we in this Committee should recognise, clearly and frankly, as an historic principle, that Parliament has a duty to the electors whose rights we in this House are endowed with a privileged station to protect.
§ That duty to protect the elector's rights is paramount. In 1945, the late fifth Marquess of Salisbury declared that duty to be paramount. This Party, in Opposition after the war, declared that duty to be paramount. Indeed, more than 100 years ago, to be exact in 1871, the third Marquess of Salisbury is on record as saying words that amount to the same; that this duty—the duty to protect the electorate—is paramount. We would surely all agree that it is never wise to 825 issue a blank cheque, even to a member of the family; certainly not in business affairs, and least of all in public affairs. And because this is common sense that is why the genius of our nation has developed the principle and the machinery of public accountability. That is why it has developed a constitutional practice never to give any Government a blank cheque, except possibly during the period of Cromwellion rule, for which I sometimes fear some of my respected noble friends are beginning to have a certain fresh uprush of sympathy and liking.
§ The defence of the Quinquennial Act has since 1911 been written into our deed of trust, and if it is our paramount constitutional duty in this House to save the electors from any deprivation of their five-yearly rights, what then are those rights? Surely they are to furnish a mandate to a Government for five years; for five years only and not a day more. Yet the proposal in Clause 2(1) is that this House, as it were, signs away goodness knows what as yet unwritten obligations, not just for six years—that is, over into the term of the next Parliament; not even just for 20 years, as in the NATO Treaty (in regard to which of course we reserved an annual right of review of the means of implementation), but for ever, indefinitely, without any review of any kind inserted in the Statute. Are Ministers fully satisfied that this clause does not contradict the purpose of Parliament and therefore the Quinquennial Act which is designed to protect it?
§ I look forward with interest, but after last Thursday with an interest now alas! more heavily laden with apprehension, to the Government's justification. Another member of the Government, my right honourable friend the Chancellor of the Duchy of Lancaster, said in another place that the issue of sovereignty is, broadly, as it is under other treaties that we have signed in the past. How does this Bill, let alone this clause, compare with any other treaty that we have ever signed? On what popular mandate are we invited to provide this blank cheque for the future? By what Party political manifesto are we entitled to do this thing? My noble and learned friend the Lord Chancellor referred to, as I think he described it, a "widespread failure to understand", and to the fact that this causes much confusion on the Bill. I certainly 826 come within that category, because there is much here that I cannot pretend to understand: and when eventually we are told that the final exercise of sovereignty is to break the Treaty and walk out, then I ask myself like a drunken man: "Am I, or does it?".
§ I therefore hope that we shall have from the Front Bench two things. First, I hope for a genuine and simple explanation and not an argument from political or diplomatic expediency. My noble and learned friend the Lord Chancellor stressed—and I sympathise at least in this regard with what he has said, although some of it I did not understand—the need to get down to discussing this Bill in a constructive way. In the light of that expression, I have a second hope of the Government; that is, evidence of a sincere and real readiness to listen: not just patiently and courteously to sit through, but to listen to at any rate sincere arguments, and a readiness to consider them between now and Report. I beg to move.
§ LORD SHINWELLIt has been my experience that it is customary on the part of Governments to enter into treaties which are to some extent indefinable; that is to say, they have not been fully negotiated in detail in advance. That is not only customary, but desirable, because it is difficult in respect of the provisions of some treaties into which Governments of this country have entered to foresee the future. Take, for example, the treaty between the United Kingdom Government and the French Government before 1914 relating to resistance to an act of aggression on the part of a potential enemy. As a member of the Government many years ago—indeed as far back as 1924, on behalf of the first Labour Government—I had the experience of entering into a treaty with the American Government on a matter of oil supplies, and subsequently a document was produced which in effect ratified the treaty. There again, for various reasons, it was impossible to be too specific in advance: we could not anticipate what the future would bring.
But here we are in a different situation. Over and over again in the other place in the course of their various debates during the Committee stage the argument was adduced that negotiations had proceeded on a variety of topics—the 827 agricultural policy, and many other matters associated with this legislation. That argument was adduced in order to fortify the contention that there has been sufficient debate on this subject. As regards the Amendment now before your Lordships it is clear, as the noble Earl, Lord Lauderdale, has pointed out, that, setting aside the Treaty of Accession, which has been accepted—one may be in opposition to it, but there it is—we are now being asked in the clause under review to accept liabilities, rights and powers which would lead to regulations, some restrictive and some positive in character, which would become enforceable, and—I particularly direct your Lordships' attention to this aspect—without further enactment. I think that is highly objectionable. It is one thing to accept a treaty after negotiation, even if some particulars have been ignored or left out for one reason or another, but it is another thing to ask us to accept liabilities which are unforeseen, impossible to define, and which are in the power of the Commission, the Council of Ministers, or a combination of both to implement, without Parliamentary sanction. This brings me to the matter of Parliamentary control. I noted that the noble and learned Lord the Lord Chancellor said earlier that there was effective Parliamentary control. I do not see it myself, and I am satisfied that many other noble Lords are unable to discern anything of the nature of effective Parliamentary control in many of the clauses under review. So I am concerned not so much with what has been done after negotiation, accepting the Treaty of Accession with all that that means, but with what I regard as obnoxious and repugnant; that is, that we should take this further leap into the dark with a further pig in a poke without regard to the consequences.
Who can tell what is going to happen? We are then placing ourselves without reservation in the power of the Commission and the power of Ministers. It may well be that in the future, with some form of political integration or association, we shall have elected representatives in Bonn, Brussels or Paris, or wherever it may be. We may have a voice in the discussions; but our representatives will not, as this clause indicates, have any 828 power to prevent the implementation of the various directives. I have already directed the attention of your Lordships to the fact that the clause itself says "without further enactment". That means that absolute power—and I repeat those words with emphasis: absolute power—is going to be vested in Brussels, Bonn, Paris or where the Commission may be. We are going to be utterly helpless. For that reason I support the Amendment which has been advocated by the noble Earl.
§ 7.1 p.m.
§ LORD DAVIES OF LEEKI am not going to delay the Committee, but I feel very sad about this matter. I have listened to delightful expositions, legal explanations beautifully delivered by both the noble and learned Lord the Lord Chancellor and by the noble Viscount. We have been told how the Community will work, but no one has admitted that we have given power away and that in giving away this power the corridors of power, so far as the people of England are concerned, have become the corridors of impotence. I agree entirely with the phrase "a blank cheque" which has been used. My noble friend Lord Stow Hill put forward a point and asked in simple English that while accepting the Treaty we should have some power over regulations and instruments that may come in the future. We have had a brilliant explanation of how the law will work but the explanation did not contain the confession, as it should have done, that power is being taken away from this House.
Finally, I should like to quote what Sir William Blackstone said, in looking at the law between 1723 and 1780 with some understanding:
It was a known apophthegm of the great Lord Treasurer Burleigh that 'England could never be ruined but by a Parliament': and as Sir Matthew Hale observes. this being the highest and greatest court over which none other can have jurisdiction in the kingdom, if by any means a misgovernment should in any way fall upon it, the subjects of this kingdom are left without all manner of remedy. To the same purpose, the President Montesquieu. though I trust too hastily presages; that as Rome, Sparta and Carthage have lost their liberty and perished, so the constitution of England will in time lose its liberty, will perish: it will perish whenever the legislative power shall become more corrupt than the executive.829 And after two million words of speeches, and after going through another place for weeks and after going through your Lordships' House for further days, if not one word is changed that is corruption of power when there has been such skill in debate emanating from both places. And for this Government not to change one iota is an insult to Parliament and an insult to the people.
§ 6.54 p.m.
§ LORD GREENWOOD OF ROSSENDALEI should like to support the noble Earl, Lord Lauderdale, and I do so with conviction but, I confess, with little hope of success. The reason for my support is really summed up in the words of my noble friend Lord Shinwell: that we are buying a pig in a poke. Every Government goes through a period when it seems to be accident prone, but the trouble with this Government is that the condition seems to be becoming chronic. One cannot, I suppose, blame noble Lords opposite for the fact that two days before we debate the noble Lord's Amendment, The Times, on Saturday. printed an article by Mr. Tom Harper headed "First step towards a book of law that the citizens can understand". The article began:
Statute law—the law enacted by Parliament—should, according to Bentham, be so readily accessible to the ordinary citizen that a father would have merely to 'open the chapter on fathers', and an agriculturist, 'the chapter on agriculturists'. Fathers and agriculturists, and others, who put the matter to the test today will very soon discover that we are still a long way from Bentham's ideal of accessibility: but a substantial advance towards it has been made "—and I understand that following the initiative of my noble and learned friend Lord Gardiner, who set up a Committee in 1966, we now have a document called Statutes in Force. There appear to be 3,000 Statutes. It is possible now for the agriculturist to look up "agriculture" and find it more simply than has been the case in the past; so, at any rate in theory, every agriculturist will know what the law is.I hope it does not seem indelicate to ask your Lordships to put yourselves into the shoes of the ordinary common man. Let us, for the moment, visualise the ploughman homeward plodding his weary way, asking himself what price he is going to be allowed to charge for his turnips, confused by all the regulations and laws 830 with which he is faced, fumbling in the pockets of his moleskin waistcoat for the appropriate sections of Statutes in Force and asking himself what the law is. Of course, theoretically, Bob should be your uncle, but there are further difficulties because our unfortunate ploughman has not simply to understand the appropriate Statute out of a total of 3,000. Indeed The Times itself ends with a rather gloomy summing-up and says that the agriculturist
will nevertheless find it as difficult to comprehend, at times as utterly incomprehensible, as everOn top of that, we have the fact that there are several thousands of statutory instruments which the ploughman is also expected to know. Many of your Lordships will remember the days when Lord Chief Justice Hewart was waging his great campaign against the "new despotism" and what he regarded as the menace of delegated legislation. Now we are delegating legislation not simply from your Lordships' House or from another place but to another body, sitting outside this country—a body which is not an elected body but which can, according to the noble and learned Lord who sits on the Woolsack, issue regulations which are immediately applicable to this country. So the ploughman has to cope first of all with the Statutes, then with the Statutory Instruments; and no doubt he is reassured about the Statutory Instruments because he knows that at least Parliament scrutinises them. They all come within the scope of the Statutes under which the indirect legislation is made, and in many cases they can in fact be rejected either by your Lordships' House or by the Members of another place. So the poor old ploughman, poring over his Statutes, has also to bear in mind the Statutory Rules and Orders.There is worse to come. There are also the 42 volumes of Community law. There may even by that time be the leading work of Hailsham on Directly Applicable Regulations. There will certainly be the 42 volumes of Community law, some of it based on precedent, not all that impressively translated into the English language. There will be abundant scope for ambiguities of major proportions. I have been told that there is one article in the Treaty of Rome of which there have been three Germanic versions and two French versions. The 831 matter had to be taken to the Supreme Court of Luxembourg to decide which was the correct version. One of the two French versions was regarded as having the appropriate wording for the Article.
We have this great body of legislation already enacted. Now we are proposing, in the words of my noble friend Lord Shinwell, to buy a pig in a poke. One of the things about legislation in both Houses of Parliament over the years has been the care that we have taken to get exactly the right wording to suit the situation that was confronting us. I listened the other day to what I thought was a most impressive speech from my noble friend Lord Hale about the hours that he and I sat in another place arguing about single words, as to whether they implemented what the Goverment stated they wanted to do and whether they reflected the will of Parliament. As my noble friend Lord Hale reminded us, quite often when Parliament had spoken judges later said that Parliament ought to have been more careful in its choice of words. We have spent months and years of our lives arguing about the wording of Statutes. Now, at the drop of a hat, we are going to commit ourselves in perpetuity to accept regulations that come from these distinguished gentleman sitting in Brussels. I find that an utterly unacceptable situation. I believe that any Member of your Lordships' House who has the respect for Parliament and democratic institutions which all of us ought to have will find that, too, an unacceptable proposition.
I have said that I do not object to the principle of going in; I am prepared to accept, much as I dislike it, the Community law which has already become Community law. That is what the noble Earl is asking us to do: to accept what has been decided upon already, not to commit ourselves, willy-nilly, to accept whatever may be brought forward in the years to come. We have bought a pig the looks of which we know. What the noble Lord and I are objecting to is committing ourselves to buying a still further pig which it is at present impossible to see or even visualise.
VISCOUNT MASSEREENE AND FERR ARDWhat the three noble Lords who have just spoken have forgotten is that the decisions of the Council 832 have to be unanimous. Therefore, if our representative thinks something is going to be against the interests of this country it will not be a unanimous decision.
§ 7.4 p.m.
§ THE LORD CHANCELLORI have heard a number of speeches in support of this Amendment, none of which has faced the issue that if we want to go into the Community we must observe the rules of the club. One of the rules of the club is that Community law, as and when it is promulgated, becomes directly applicable in the courts of the member-States. I can quite understand that the noble Lord, Lord Greenwood of Rossendale, does not like it, because he does not want to join the club, but I do not understand the argument by which he sought to say, "I am not at this stage against the principle of entry; I am not at this stage against joining the club, but I will not observe its rules"
It is very difficult indeed to see how the noble Lord could have made the speech that he did, remembering what was said in the White Paper of 1967, for which he was collectively responsible with the other members of the Government of which he was an ornament. I will read what that White Paper said:
It would be necessary to pass legislation giving the force of law to those provisions of the Treaties and Community instruments which are intended to take direct internal effect within the Member States.… The legislation would have to cover provisions in force when we join …And now I draw the noble Lord's attention specifically to the words which follow:and those coming into force subsequently as a result of instruments issued by the Community institutions.If that statement, for which he was fully responsible as a member of the Cabinet, can live with the speech the noble Lord has just uttered, all I can say is that I am a Dutchman, which I do not think I am—at any rate, not yet.Moreover, Mr. Harold Wilson, then the Prime Minister, said in May, 1967:
Accession to the Treaties would involve the passing of United Kingdom legislation. This would be an exercise, of course, of Parliamentary sovereignty, and it is important to realise that Community law,"—and now I draw the noble Lord's specific attention to the words which follow—existing and future, would derive its force as law in this country from that legislation 833 passed by Parliament."—[OFFICIAL REPORT, Commons, 8/5/67; col. 1083.]If that were not enough, the noble and learned Lord, Lord Gardiner, then speaking from the Woolsack in this House on May 8, at the same time—and I quoted this in my Second Reading speech and I quote it now because the noble Lord has not hoisted it in—said:This legislation—that is, the pre-accession Bill—would include an enactment applying as law in the United Kingdom so much of the provisions of the Treaties and of the instruments made under them as then had direct internal effect as law within the Member States and"—and again I must draw the noble Lord's specific attention to the words which follow—providing that future instruments similarly took effect as law here."—[OFFICIAL REPORT, col. 1202.]We have spent about twenty minutes with speeches from the other side talking about the corridors of impotence, the noble Lord eating every particle of the words contained in his former utterances, and the noble Lord, Lord Shinwell, making a diatribe of the most general kind against us, and we are asked to take this seriously. What I take seriously is not the speeches that I have heard from the other side, because, in the light of what I have read out, it is not really a reputable argument for them to support this Amendment. What I take more seriously are the words which my noble friend Lord Lauderdale used in his speech in introducing the Amendment. He supported his remarks rather strangely—if he will forgive my saying so—by breaking into his pretty Greek with the remark of Pilate on a famous occasion: O γεγραφα Pilate was resisting an Amendment when he said that. The quotation therefore rather tells against my noble friend.
§ THE EARL OF LAUDERDALEWould my noble and learned friend not agree that he has put himself on a par with Pilate in resisting an Amendment? Perhaps he is going to accept the Amendment.
§ THE LORD CHANCELLORIt was my noble friend who sought to derive comfort from Pontius Pilate.
§ LORD DAVIES OF LEEK rose—
§ THE LORD CHANCELLORI will answer my noble friend first. I do not 834 derive support from Pontius Pilate. I, breaking into my pretty Italian, will say to my noble friend, Che sera, sera.
§ LORD DAVIES OF LEEKI am grateful to the noble and learned Lord. His analogy has gone completely awry. The trouble that the world has had since Pontius Pilate washed his hands of the Amendment completely! All this Government are doing is washing their hands completely of the intricacies into which we are getting. Is the noble and learned Lord not aware that that White Paper was set out for discussion and showed fairly the position we should have if we went in the Common Market without proper negotiation?
§ THE LORD CHANCELLORPilate was dealing only with the Committee stage of the Bill. It had already passed its Second Reading.
As regards the last point, the White Paper was showing the inescapable consequences of membership. The fact is that member States must give effect to directly applicable law as and when it arises. The effect of the two Amendments proposed by my noble friend goes clean against the fundamental obligations which are imposed upon us by accession to the Treaty. They are therefore, in the strictest sense, wrecking Amendments. Although my noble friend asked me to listen as well as to reply courteously (I hope that I have done both) to his sincere argumentation—and I doubt not that it was sincere—he has not hoisted in it the fundamental proposition with which we began subsection (1) of Clause 1, which is that the whole system of the Community depends upon the member States' accepting the rule of directly applicable law in the sense that I earlier tried to explain. In a sense, of course, all Acts of Parliament are permanent until they are repealed. We have had this argument before. We intend this to be a permanent arrangement, but we have not impaired our legal right to repeal any Act of Parliament. There is nothing in this Bill which does that.
§ 7.12 p.m.
§ LORD SHINWELLWe are in the Committee stage, and if the noble and learned Lord Chancellor wants to enjoy himself by indulging in what, I suppose, is a form of Hailsham humour, he is entitled to do so. But some of us would 835 prefer that he should address himself rather more seriously, and, if I may say so, objectively, to what was a reasoned argument adduced by the noble Earl, Lord Lauderdale. It may well be that nothing worries him more—much as he may dislike what a few of us on this side say about some of his alleged arguments and contentions—than the idea of somebody on his own side being inclined to indulge in what might be called an incipient revolt against the Government. So what does he do? He parades his knowledge of political history:
And still they gazed, and still the wonder grew, That one small head could carry all he knew.He parades his political history; he brings in Mr. Harold Wilson and the noble and learned Lord, Lord Gardiner.If I felt like it, I also have the capability—there is no use indulging in false modesty—to go into history. I could produce quite a number of quotations, not from people on the Labour side, but from high-ranking people on the Tory side who have expressed objections about British entry to the Common Market. I could recall the speeches by Mr. Maudling several years ago, and also speeches made by the late Sir Winston Churchill, whose views have been paraded as if he was in complete agreement with the policy of the present Conservative Government. I happen to know better. Anyone can indulge in that sort of thing, quotations dragged out of the ghosts of the past. But I should prefer that the noble and learned Lord addressed himself to the argument.
There has been a lot of bragging and boasting about the negotiations. Almost everything has been negotiated—the Common Agricultural Policy; tariffs; our association with the Commonwealth countries; how we are going to deal with New Zealand, and so on and so forth. After prolonged negotiations there is a Treaty of Accession. I agree that once a decision has been reached in the other place and in your Lordships' House on Second Reading we are bound to accept it. The Treaty of Accession is acceptable, so far as Parliament is concerned, whatever the public outside may care to say or to do. But it is a horse of a quite different colour when we are asked to accept provisions in addition to the 836 Treaty of Accession which includes a great variety of decisions already reached on many aspects of Community policy which we are bound to accept and for which there has been enactment already at the Committee stage in another place, and also to some extent here. I accept all that. But, as I say, we are asked to go further and to accept provisions.
What do we mean by provisions? Will some noble Lord who has trained himself in medical jurisprudence or has forensic abilities, none of which I possess, define what is meant by "provisions"? There has to be a substance and a content in this term. What does it mean for us in the future? Does it mean that there will be further modifications to the Common Agricultural Policy? Could it mean that? Could it mean that we are going to be hemmed down even further by the imposition of restrictive practices; or, for example, that we are going to be dictated to about regional policy? We have no information on these matters. Yet this is what we are being asked to accept.
The remarkable thing is that we are getting this from the noble and learned Lord the Lord Chancellor, who for years has prided himself on his convictions about liberty, freedom and British sovereignty. He now asks us to accept this. I can understand the noble Earl, Lord Lauderdale, revolting against this. The Government can go a bit too far. I know that your Lordships want to go to dinner and that there is other business coming along to interrupt the Committee stage, but I want just to say this. Go ahead! Do these things. What is going to happen? Can anyone foretell? We leave ourselves in the hands of a Commission, independent or otherwise; we are leaving ourselves in the hands of a Council of Ministers. What is to happen? There is no assurance and no guarantee of protection, not even on sovereignty. I know that there are a variety of definitions and interpretations of sovereignty. I do not go all the way about British sovereignty; I know that we have to abandon some of our ideas in that context. We have now to leave ourselves in the hands of people over whom we have no control whatever. We cannot dictate to the Commission.
The noble Viscount, Lord Massereene and Ferrard, ventured to interrupt to 837 talk about control, or something of the sort; he said that we had agreed to do certain things and that we must go all the way. I do not accept that. I do not know of any treaty ever entered into by a British Government which meant that we had to go all the way. There were always reservations. All the noble Earl, Lord Lauderdale, says is that there should be certain reservations in order to protect the interests of the United Kingdom and its people. That is all he is asking for. I cannot understand why members of the Committee will not accept that. It has nothing to do with opposition to entering the Common Market. It is simply a means of providing essential reservations that will afford some measure of protection. That is all we are asking for. There is a bit of a grin on the faces of some Members on the Front Bench when I say that it has nothing to do with the Common Market. I know what they are thinking: that I am such an unrepentant opponent of British entry that all this is play acting. Nothing of the sort! After all, if we are going in, let us support something for the protection of our people. But the Government will not do it. So there we are. We shall be helpless; unprotected; hopeless; with no future whatever, except a future that is vested in the hands of people on the other side of the Channel.
That is the situation. Why do your Lordships not go and tell the British public that? Why do your Lordships not go to the British public; get on the platform; get on the hustings—though I know that one cannot apply hustings to Members of the House of Lords. But why do your Lordships not go and tell the public, "It is a leap in the dark. We do not know what is going to happen in the future. But we think everything in the garden is going to be lovely"? How do we know? We do not know. We are just proceeding on assumptions, In other words, it is just hope and faith. They are excellent virtues; high moral virtues. But for heaven's sake! afford the British public some charity.
§ 7.21 p.m
§ THE EARL OF LAUDERDALEI think it is common to us all that we should like to go to our dinners. Therefore, may I answer just one or two of the points that have been made? First of all, my noble friend Lord Massereene and Ferrard, who has obviously succumbed to the temptation that is troubling us all and is no longer in his place, referred to this great point about the unanimity rule. Of course the difficulty about referring to the unanimity rule is this. Suppose that a Government do not behave in the way the public or Parliament would like and are overthrown for failing to use the veto. That still makes no difference to what goes on in the Council. That is my answer to the noble Viscount.
My noble and learned friend the Lord Chancellor enjoyed, I think, his excursions into the 1967 White Paper. He was not, happily, addressing that argument to me. But, as has been said many times over, we are not here discussing a White Paper, or what was in any White Paper; we are here discussing a Bill. With the greatest respect, I could not help discerning a certain dolce vita note about my noble and learned friend's excursion into Italian, Che sera, sera. This is not, I submit, an occasion for a dolce vita at all. MY noble friend took us again through the point that this open-ended commitment is basic to the Bill. He explained the relationship of directly applicable law to Britain. But he did not do so with any reference to a statutory obligation to refer to Parliament. He replied to me without comment on the effect of all this on the rights of electors. He replied to me without reference to the duties of this House. Therefore, if only for the historical record, I am afraid I must ask the Committee to divide.
§ 7.23 p.m.
§ On Question, Whether the said Amendment (No. 16) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 115.
839| CONTENTS | ||
| Balogh, L. | Brockway, L. | Foot, L. |
| Belhaven and Stenton. L. | Buckinghamshire, E. | Gaitskell, Bs. |
| Bernstein. L. | Davies of Leek, L. | Garnsworthy, L. |
| Beswick, L. | de Clifford, L. | Granville of Eye, L. |
| Blyton, L. | Fiske, L. | Greenwood of Rossendale, L. |
| Hale, L. | Milner of Leeds, L. | Somers, L. |
| Hoy, L. | Phillips, Bs. [Teller.] | Taylor of Mansfield, L. |
| Lauderdale, E. [Teller.] | Popplewell, L. | Watkins, L. |
| Maelor, L. | Shinwell, L. | |
| NOT-CONTENTS | ||
| Drogheda, E. | Newall, L. | |
| Aberdare, L. | Drumalbyn, L. | Northchurch, Bs. |
| Ailwyn, L, | Dundee, E. | Nugent of Guildford, L. |
| Albemarle, E. | Ebbisham, L. | Perth, E. |
| Alport, L. | Eccles, V. | Polwarth, L. |
| Amory, V. | Elles, Bs. | Poole, L. |
| Arbuthnott, V. | Emmet of Amberley, Bs. | Rankeillour, L. |
| Ashbourne, L. | Falmouth, V. | Reay, L. |
| Astor of Hever, L. | Ferrers, E. | Reigate, L. |
| Balerno, L. | Gage, V. | Remnant, L. |
| Barnby, L. | Gainford, L. | Rhyl, L. |
| Belstead, L. | Gladwyn, L. | Robbins, L. |
| Berkeley, Bs. | Goschen, V. | Rothermere, V. |
| Bessborough, E. | Gowrie, E. | Ruthven of Freeland, Ly. |
| Bethell, L. | Grimston of Westbury, L. | St. Just, L. |
| Blake, L. | Hailsham of Saint Marylebone, L. (L. Chancellor.) | Saint Oswald, L. |
| Bledisloe, V. | Sandford, L. | |
| Bradford, E. | Hanworth, V. | Seear, Bs. |
| Brecon, L. | Harvey of Prestbury, L. | Selborne, E. |
| Brentford, V. | Hawke, L. | Selkirk, E. |
| Brooke of Cumnor, L. | Hewlett, L. | Sempill, Ly. |
| Brougham and Vaux, L. | Howard of Glossop, L. | Shaftesbury, E. |
| Carrington, L. | Hurcomb, L. | Stonehaven, V. |
| Chelmer, L. | Inchyra, L. | Strathclyde, L. |
| Colville of Culross, V. | Kemsley, V. | Stratheden and Campbell, L. |
| Colyton, L. | Jellicoe, E. (L. Privy Seal.) | Swaythling, L. |
| Cork and Orrery, E. | Latymer, L. | Terrington, L. |
| Cottesloe, L. | Limerick, E. | Thorneycroft, L. |
| Cowley, E. | Lothian, M. | Trefgarne, L. |
| Craigmyle, L. | Macleod of Borve, Bs. | Trevelyan, L. |
| Cranbrook, E. | Mancroft, L. | Tweedsmuir, L. |
| Crathorne, L. | Massereene and Ferrard, V. | Tweedsmuir of Belhelvie, Bs. |
| Croft, L. | Merrivale, L. | Vivian, L. |
| Cullen of Ashbourne, L. | Milverton, L. | Wakefield of Kendal, L. |
| Daventry, V. | Monck, V. | Waldegrave, E. |
| Davidson, V. | Monk Bretton, L. | Wolverton, L. |
| De L'Isle, V. | Mowbray and Stourton, L. [Teller.] | Wynford, L. |
| Denham, L. [Teller.] | Yarborough, E. | |
| Derwent, L. | Netherthorpe, L. | Young, Bs. |
On Question, Motion agreed to.
§ 7.31 p.m.
EARL JELLICOEMy noble friend Lord Lauderdale referred to the fact that some of your Lordships were seeking some refreshment, and I think it was agreed that we should interrupt our Committee stage al about this time in order to take two Bills which are before us. I think it has also been agreed through the usual channels, in order to facilitate progress, that we should have no artificial break after we have dealt with those two Bills but that we should immediately resume our Committee stage. With those preparatory remarks I beg to move that this House do now resume.
§ House resumed.