Lords Sitting of 8 August 1972

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Southwark.

PALESTINE LIBERATION ORGANISATION OFFICE
LORD SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what supervision will be exercised over letters and parcels addressed to the office in England of the Palestine Liberation Organisation.
THE MINISTER or STATE, HOME OFFICE (VISCOUNT COLVILLE OF CUL-ROSS): My Lords, the noble Lord was good enough to let me know that he has in mind the possibility that bombs might be sent to this office through the post. I am assured that the Post Office would take appropriate action if they had reason to believe that they had such a device in their hands. If anyone has delivered to him a postal package which he fears may contain a device of this kind, his proper course is to inform the police, who will give suitable advice. This would apply to the staff of this office—if it were set up.
LORD SEGAL: My Lords, while thanking the noble Viscount for that reply, may I ask whether he is aware that a member of the Palestine movement has recently been blinded through opening a letter-bomb in Beirut? Does not the case exist for exercising the most rigorous scrutiny over all correspondence addressed to this office in England?
VISCOUNT COLVILLE OF CULROSS: My Lords, I do not think it would be right for us to exercise rigorous scrutiny if that means that we ourselves should open the correspondence addressed to them. What has probably been learnt
942
about the P.L.O. is that there are packages delivered to members or staff of their offices, as the noble Lord told us, which can blow up. I would think that if there were an office here they would be aware of this situation. And, of course, if the Post Office have any prior indication that this is so they can deal with it themselves. But I think the incidents that have occurred—there are more than one—are enough to put people on their notice of danger of this kind.
LORD JANNER: My Lords, would not the easiest way of preventing all this scrutiny and chance, and everything else concerned, be to find ways and means of preventing an office of this description from being opened? Surely, this should be done when everybody is aware of the fact that these offices will be used for either this particular body or affiliated bodies to incite people to murder and to terrorism.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble Lord, Lord Janner, put down a Question on this subject very recently. On that occasion I sought as best I could to answer all the questions asked, including I think all those that he has just asked by way of a supplementary. I much regret that I simply cannot add to what I think was a very full Answer then.
LORD SLATER: My Lords, is the noble Viscount aware that, according to the powers vested in the hands of the Post Office Board, they have no powers whatever to open sealed correspondence? This point has been answered. I personally have answered it in another place time and time again with regard to the powers the Post Office possess.
VISCOUNT COLVILLE OF CULROSS: My Lords, the noble Lord, Lord Slater, with his enormous experience of this matter, is quite right. This was the reason why I suggested to the noble Lord, Lord Segal, that it might not be a good idea if I sought to say anything about the Post Office or anybody else opening sealed correspondence. On the other hand, if something is ticking loudly, and does not appear to be an alarm clock, I think that the Post Office probably have some powers to remove it from the building.

COMPANY LAW AND DIRECTORS' SHARE DEALINGS
2.40 p.m.
LORD HAWKE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in any company legislation now being drafted, they will see that provision is made for all dealings in their company's shares by directors and senior executives to be recorded in the annual report.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF TRADE AND INDUSTRY (THE EARL or LIMERICK): My Lords, the position at present is that the directors' report of a company is required to show, in respect of each director, the number of shares in the company in which he was interested at the beginning of the year to which the report relates and also the number in which he was interested at the end of that year. It can thus be seen whether a director has had any dealing in the company's shares. Details of any transactions, including prices given or received, may be obtained from the register of directors' share interests which the company is required to keep and make available for inspection. Her Majesty's Government will be considering in the course of the review they are making of company law whether this information would appropriately be recorded in the directors' report and whether, if the term "senior executive" could be defined, senior executives should also be required to disclose their dealings.
LORD HAWKE: My Lords, I thank my noble friend for his Answer, which satisfies my Question.

IMMIGRANTS AND DETENTION WITHOUT TRIAL
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how far detention without trial, whether in prison or detention centres (otherwise than in Northern Ireland, and in remand and contempt of court cases), is practised in the United Kingdom, to whom it is applied, and what is the number of persons involved.
VISCOUNT COLVILLE OF CULROSS: My Lords, there are powers to detain without trial aliens and Commonwealth immigrants pending further examination by an immigration officer and pending removal after being refused admission to the United Kingdom; and aliens, Commonwealth immigrants and citizens of the Republic of Ireland in respect of whom a deportation order is in force. The number of persons currently detained under these provisions is not readily available.
LORD BROCKWAY: But, my Lords, is the Minister aware that the Home Office supplied a list of those who are detained in this way and it numbered then 95—
LORD AVEBURY: Ninety-nine.
LORD BROCKWAY: Ninety-five, and I am referring particularly to those who are Commonwealth citizens. Is he aware that at this moment there are 71 Commonwealth citizens under detention without trial who are British citizens or British protected persons and that many of them have now been under detention, without trial, for ten weeks? Is this not an instance of how impossible the present situation has become regarding British citizens who are non-whites and are coming from the Commonwealth?
VISCOUNT COLVILLE or CULROSS: My Lords, the terms of the noble Lord's Question go much wider than that specific point. If the noble Lord had asked me how many people had been detained who had come into this country from certain countries in East Africa and India without the necessary entry certificates, then I might have been able

945
to give him some figures. Whether the figures he gives me to-day are accurate at this moment, I do not know. What the noble Lord asked covers a much wider field, including those persons subject to deportation; therefore I cannot give him the figures for which he asked in his Question. As to the wider issue, I agree that it is very worrying. At the moment, it is under consideration by my Department and by the Foreign and Commonwealth Office. We are urgently trying to solve this problem and I would respectfully suggest that this is a somewhat delicate moment at which to go into the details of this matter, in view of the events of the last few days.
LORD BROCKWAY: My Lords, while thanking the noble Viscount for that answer, may I say that he has really evaded the Question that I put. I asked "to whom it is applied", and that question relates particularly to Commonwealth citizens who hold British passports and who have been detained for long periods. May I particularly ask him to look into the case of a young Indian woman, Usha Shah, who, since May 29, has been held in Harmondsworth Detention Centre and cannot be deported because she has British protectorate status. When is this intolerable position to be ended, that British citizens with British passports can be detained for long weeks in our prisons and detention centres, without trial?
VISCOUNT COLVILLE OF CULROSS: My Lords, as to the individual case he has mentioned I cannot, without notice, give the noble Lord any sort of answer at all. All these cases are individual and have to be looked at carefully. I am surprised that anybody is still detained for so long but I will look into the case for the noble Lord. The noble Lord's Question did not relate only to those people: it related to all those to whom my initial Answer referred, including those under deportation orders. That is a correct statement of the law, in correct answer to the Question asked by the noble Lord.
I understand the noble Lord's concern about one bloc of these people and I may say that, serious though the situation is, the more serious position still relates to those in countries overseas who have complied with the certificate and voucher
946
system, who are hardship cases, who are awaiting entry under the proper, recognised machinery, and over whom these people have sought to jump the queue.
LORD AVEBURY: My Lords, is the noble Lord aware that included in the list to which the noble Lord, Lord Brockway, referred there were seven citizens of the United Kingdom who had arrived in this country from India without the proper vouchers and who had been on the waiting list, having been accepted by our High Commissioner there, for as long as four years? Bearing in mind the relationship between the 500 vouchers a year decided on by the Government earlier this year and the 2,360 people waiting in the queue in India, does he not think it is hardly surprising that some of these people who have been unable to obtain employment in India have lost patience and have failed to go through the usual channels?
VISCOUNT COLVILLE OF CULROSS: My Lords, if I thought that all of those who have sought to jump the queue were unable to take employment in India—well, the noble Lord nods his head, but the information I had is that the plight of many (I will not say all, but many) of the people who have sought to get to the front of the queue in this way is considerably less acute than that of some of those whom they would replace and who have been for some time on the proper list.
LORD HALE: My Lords, could the noble Viscount say under what section of what Act the lady referred to by my noble friend, namely, the lady who has been detained since May, is detained in a penal institution; under what conditions she is detained; whether she has been advised of her rights under the Habeas Corpus Act and to what extent she has a right to ask advice and a right of appeal to a court?
VISCOUNT COLVILLE OF CULROSS: My Lords, she is probably detained—and I say this without knowing the circumstances of the individual case—under the Commonwealth Immigrants (Places of Detention) Direction 1970, made under Sections 13(1) and 15(1) of the Commonwealth Immigrants Act 1962. As to the rest of the noble Lord's questions, I cannot without further notice answer them

947
in the detail which I think they deserve. I should prefer to deal with them on a subsequent occasion if he will put down a Question.
LORD GARDINER: My Lords, may I ask the Minister the reason for his surprising statement that the numbers in each category are not readily available?
VISCOUNT COLVILLE OF CULROSS: My Lords, had the noble Lord, Lord Brockway, asked about people who had come here without the necessary vouchers and who were therefore detained under that particular part of the Act I could probably have given him the figure for to-day. What his Question covered was those who were subject to deportation orders at one stage or the other—their cases may be under appeal—and also people who are subject to other appeal proceedings. The numbers fluctuate to such an extent and cover such a large area of the country that I should not feel justified in giving the figure for to-day of all the people concerned.
LORD BROCKWAY: My Lords, did I not ask to whom detention without trial applied, and does that not include the Commonwealth citizens to whom I referred? And did I not ask in my Question the number involved? In view of that, have not my supplementary questions been entirely relevant?
VISCOUNT COLVILLE or CULROSS: My Lords, in fact the noble Lord did not. He asked a portmanteau question which includes Commonwealth immigrants, both those pending examination and those awaiting removal. It also includes aliens, immigrants from the Commonwealth and citizens from the Republic of Ireland awaiting deportation. The noble Lord shakes his head, but that is factually and legally correct; and I cannot give the answer in terms of numbers for all of them.

HIJACKING OF AIRCRAFT
2.50 p.m.
LORD JANNER: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what steps they have now taken in relation to the prevention of the hijacking of 'planes and what arrangements have been made in this respect.
THE MINISTER OF STATE, FOREIGN AND COMMONWEALTH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, Her Majesty's Government will be taking part in discussions next month in the International Civil Aviation Organisation on a convention providing, for joint action against countries which fail to deal with hijackers. Security measures by British airlines and at British airports have been strengthened.
LORD JANNER: My Lords, while thanking the noble Baroness for that reply, may I ask her to be good enough at the meeting which is to be held to emphasise that any nation which harbours people, or allows them to conspire towards the very serious crime of hijacking should not be afforded facilities for air services to that country, bearing in mind that hijacking is perhaps one of the most serious attacks of this age on civilisation?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I quite agree with the noble Lord that this is a very serious and difficult problem. In addition to the action that we are trying to take to get an agreed convention, we are trying to achieve the wider interpretation of previous decisions both of the United Nations and the ICAO which are related to civil aviation.
EARL FORTESCUE: My Lords, would my noble friend agree that a simple remedy would be to segregate pilots from passengers, as has been done for many years with the drivers of trains and buses? The only communication between passenger and driver is a bell which requests the driver to stop at the next convenient place. Might it be advisable to have one-way speech from the pilot to passengers so that he may inform them that all is well?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords. I believe that that suggestion has been considered; but as the commander of the aicraft is in charge of the entire aircraft, that solution would not be acceptable.
LORD HAWKE: My Lords, are the entire scientific resources of Her Majesty's Government, and indeed of all civilised Governments, incapable of solving a problem which does not appear to be as insurmountable as it has so far proved to be?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, we hope that it is not insurmountable, but without doubt it is a very serious potential danger. Even the lengthy searches which now take place on some of our large aircraft greatly delay all passengers and, of course, all traffic at airports. It is difficult to get the right mean.
LORD HAWKE: My Lords, I am referring not to precautions taken before passengers board planes, but to some scientific device which will come into operation when the pilot knows that somebody is threatening to hijack the aircraft. Cannot the scientists produce thing like gas or darts which will come into action on such occasions?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, that is a fascinating idea, though I am not sure how many people would be gassed or subjected to darts.

BUSINESS
LORD DENHAM: My Lords, with the leave of the House my noble friend Lord Gowrie will be making a Statement on industrial training at a convenient moment after 3.30 p.m.

EUROPEAN COMMUNITIES BILL
2.53 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, that the House do again resolve itself into Committee.—(Earl Jellicoe.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 2 [General implementation of Treaties]:
LORD SHACKLETON LORD SHACKLETON moved Amendment No. 30:
Page 2, line 36, leave out ("or department".
The noble Lord said: We now come to Clause 2(2) and this Amendment is essentially a probing one with which I can deal briefly. It raises some quite important issues and I want to make sure that I have understood the explanations which the noble and learned Lord the Lord Chancellor and others have given on this topic. I should like to conduct a small viva to ensure that I understand at any rate this part of an otherwise incomprehensible Bill. I hope that I may have the attention of the Lord Chancellor, of my tutor, so that he can inform me whether I am right or wrong in what I say.
THE LORD CHANCELLOR (LORD HAILSHAM OF SAINT MARYLEBONE): The noble Lord's tutor at the moment is the Leader of the House and not the Lord Chancellor.
LORD SHACKLETON: That is unfortunate for me because, with the greatest respect to the Leader of the House, I am not sure that he is not equally uncertain of his ground in this matter. However, I will press on hopefully. I understand that subsection (2) provides that whether or not they are directly enforceable, the regulations to which the provision refers require an Order for their implementation. I hope that it will not be necessary for me to repeat my remarks and that the Leader of the House, who is speaking with one of his colleagues on the Government Front Bench, will give me his attention.
EARL JELLICOE: I was intending no discourtesy to the noble Lord. I have two ears and I can listen to two people at the same time.
LORD SHACKLETON: That is one of our fears about this Government; if they occasionally turned an ear in the direction of the Opposition and heeded our advice they might improve the Bill. I understand that under the clause with

951
which we are dealing there arise a number of obligations, liabilities and restrictions, some of which are directly applicable and some of which are not. I also understand that the division between the two depends not on the general function or nature of the Order but on whether it requires some further implementing action by the Government to make it effective. If I have the position right, then regulations made by the Commission or Council—or for that matter any other activities, even treaties, that are made; we are at the moment dealing specifically with regulations or directives—call for an Order to give them effect. Such an Order is subject under the Bill to the Negative Resolution procedure and it can be made either by a Minister or a Department. I am fully aware that all sorts of regulations are made by Departments without Ministerial intervention. If I am wrong, I am sure that the Leader of the House will put me right. I think I am right because this explanation would seem to warrant the use of the words "or department" in the subsection.
EARL JELLICOE: It is important to get this right from the word "go". If the noble Lord will read the provision carefully he will see that one can adopt either the Negative or Affirmative Resolution procedure. I had to be guided through this and I appreciate that it is complicated. I intervene because the noble Lord said that the Negative Resolution procedure would apply. In fact, as I say, it can be either the Affirmative or Negative Resolution procedure.
LORD SHACKLETON: I hope the noble Earl is right.
SEVERAL NOBLE LORDS: He is.
LORD SHACKLETON: The noble Earl's colleagues on the Government Front Bench confirm that he is right. That being so, may I be assured that under this subsection not merely Ministers but Departments will make Orders? If so, will they be of a kind which will be subject to Parliamentary control, whether by the Affirmative or Negative Resolution procedure? I appreciate that there are Orders of various kinds which never come before Parliament. I may be wrong about that because even in England, before considering the E.E.C., this is a complicated matter.
952
In this case I am concerned to know whether Departments will have power to make Orders. We are entering an unknown field and few of us have any real idea of the sort of Orders that will be made. It would be helpful if the noble Earl would distinguish between the sort of Orders to be made by Departments as opposed to those which will be made by Ministers. I take it that Departments would be Departments like the Customs Department which although technically come under the Treasury, are in a sense a sort of "hived-off" body. In that case, would it not be better if Ministers were to make the Orders? We had expressions of opinion last night that Ministers were going to keep closely in touch with Parliament and make arrangements for Parliament to consider what was being done. The Government refused to accept our extremely reasonable Amendment to ensure that Parliament was informed of some of the new liabilities, obligations and so on. None the less we were given assurances that the Government were determined to do this. I should like to know why and whether Departments should be enabled to have this power and how it will operate. As I say, it is essentially a probing Amendment although it does raise some of the issues of this subsection. I beg to move.
3.1 p.m.
EARL JELLICOE: It may be useful if I come into the discussion at this stage, I am not quite certain whether as a pupil or as a tutor, but if as a pupil then I am borne up by two illustrious tutors on my left and on my right. I should perhaps, in answer to what the noble Lord, Lord Shackleton, has said, briefly explain the scope of the orders or regulations likely to be made under Clause 2(2). My noble friend, Lord Colville of Culross, has already made it clear that there are in fact only a handful of existing obligations which will need to be implemented under Clause 2(2). We believe that Part II and Schedule 4 of the Bill cover all the significant changes in our domestic law which are necessary to execute our obligations, and the matters which will fall to be dealt with under Clause 2(2) are small in number, for the most part small in significance, but rather varied in scope. They cover the waterfront from marketing standards for eggs, the

953
licensing of proprietary pharmaceutical products, the classification of wood in the rough and crystal glass, to aid to nongovernmental vocational training schemes.
LORD BESWICK: Before the noble Earl finishes the end of that list, could he say which of the items on the list he has just given will, in the case of an offence, attract a penalty of two years in prison or £400 fine?
EARL JELLICOE: So far as I know, none.
LORD BESWICK: Could the noble Earl then say why provision is made in sub-paragraph (1) of paragraph 1 of Schedule 2. which refers to Clause 2 subsection (2)?
EARL JELLICOE: It could be necessary in the future, but I think the tutor might be allowed to go on without this viva voce at this particular stage. I understood that this was a probing Amendment and my noble friends have explained why a very general power of subordinate legislation is required in this Bill. But, as I understand it, that is not the point at issue here at the moment. What is, or could be, at issue is who should be able to exercise this power. As the Bill is at present drafted, either a designated Minister or a designated Department can make the regulations for the purposes set out in this particular Clause 2(2).
Perhaps I could explain the background. There is in fact a fairly simple explanation. In the first place there is nothing unusual in giving powers to specified Departments in addition to or as opposed to specified Ministers. That is a perfectly normal proceeding for which there are innumerable good precedents, and the reason for it is a very simple one. Although there must always be—and nothing in this clause will detract from this—a Minister answerable to Parliament for the actions of each Department, certain Government Departments are, for reasons often rather deep if not buried in history, not actually in the charge of a single Minister but of a board or of a number of commissioners. I cite the following examples: the Treasury, the Inland Revenue, Customs and Excise and the old Board of Trade. It is not only normal but is essential for powers
954
of subordinate legislation to be conferred on such authorities, since they cannot be discharged by a Minister as in the case of other Departments. To show how normal this practice is I would instance only a couple of examples. There is the income tax legislation, for example, which empowers the Board of the Inland Revenue to make regulations about P.A.Y.E. and double taxation relief; and the Customs and Excise Act 1952 contains a number of powers for the Commissioners to make regulations about the import and export of goods.
So much for conferring powers on specific Departments. But, of course, as the noble Lord, Lord Shackleton, has spotted, a more general provision is built into Clause 2(2). This is because we cannot at this moment precisely foresee which Government Departments will need, in all instances, to exercise this regulation-making power. As I explained, it is not likely to cover a very wide spectrum, but the precise spectrum cannot be foreseen at this present time. The situation we have to face is that this Bill covers the whole present and future field of Community obligations and inevitably cuts across normal departmental frontiers. As time goes on, therefore, we cannot exclude the possibility that other Government Departments than we can foresee at the present time may need to make regulations under this provision, and that is why the powers are potentially made available to any Minister and any Department.
Frankly, I cannot see anything wrong about this, more especially since we have built in pretty substantial safeguards here to which the noble Lord, Lord Shackleton, referred and which I could perhaps for a second expand upon. I have already pointed out that it is absolutely normal form that Government Departments make regulations where they are empowered by Statute to do so. Such power is normally conferred for purposes specified in the parent Statute and is then exercisable without any intermediate procedural stage. It is precisely because it is not possible to anticipate here and now the occasions when regulations under Clause 2(2) may be needed that the subsection provides—as built into this subsection specifically—an intervening procedure. That is why we have built an additional safeguard into Clause 2(2) and

955
propose to stipulate that no regulations may be made by any Government Department until that Department has been properly designated by an Order in Council. The Order in Council in question has to designate the Department and the purpose for which the regulation is required. The Order so designating the Department will come before Parliament in the way prescribed in Paragraph 2(2) of Schedule 2. It will, as I have mentioned, be subject to either the Affirmative or the Negative Resolution procedure, as the case may be. When I first read Paragraph 2(2) of Schedule 2 I thought it was only the Negative Resolution procedure, but if noble Lords read that sub-paragraph carefully it becomes apparent that it is the Affirmative or the Negative Resolution procedure. Likewise—and this is the second safeguard—there is no question of the departmental regulations themselves in any way by-passing Parliament. They, in their turn—there is a "double safety catch" here, as it were—will be subject to Parliamentary scrutiny, in this case again either in accordance with the Affirmative or the Negative Resolution procedure, just as all subordinate legislation is at present. I have sought to explain the background to this matter. I think I have covered the points which the noble Lord, Lord Shackleton, put to me in an interrogative form, and I hope that noble Lords will be satisfied with my explanation.
LORD SHINWELL: May I ask the noble Earl a question? He has spoken with his customary clarity, but there is one point which appears to be absent in his exposition. I follow the meaning of what he says—that a power to implement regulations can be vested in a Department but it is obviously inspired by the Minister responsible. But can the noble Earl point to any piece of legislation, any Parliamentary Bill, where the term "Department" is used in this context? I cannot recall in any legislation with which I have been associated any reference to a Department in this particular context. The power has been primarily and essentially vested in the Minister, even as regards implementation, either preceding a debate on an Affirmative or a Negative Resolution in Parliament or without any debate at all.
EARL JELLICOE: It is a very fair point that the noble Lord, Lord Shinwell, has put to me, and, speaking off the cuff, I cannot point to any part of our legislation where a Department as such, and only as such, is specified. What one normally gets specified is the Treasury or the Inland Revenue or Customs and Excise, or indeed in many cases, hundreds of cases, the old Board of Trade. That is because, as I sought to point out in my introductory remarks, there one is able to foresee and specifically provide for the particular Minister or Department. Here we are providing for a more generalised power. I have sought to show why that is necessary, but I have sought also to point out that there is the safety catch here that the Order in Council will then specify the particular Department.
LORD SHINWELL: I am ready to accept what the noble Earl has said, but would it not have assisted clarification if instead of using the expression "Minister or department" in this clause, it had specified quite clearly that the power is vested in the Minister and that the Minister has the power to assign to a department, either his own or some other department, the power to implement? If it were expressed in that form no objection would be taken to it, because obviously at some time or other a department has to undertake certain implementation as a result of a decision by the Minister or as a result of debate in Parliament.
EARL JELLICOE: I do not think that would be so, because the department in these cases, the sort of cases I have instanced, is a separate entity with separate powers. The Minister has ultimate responsibility and responsibility to Parliament, as I have pointed out, but in the sort of specific instances with which the noble Lord is familiar and to which he has referred it is the department which is then indicated in legislation.
LORD SLATER: If I may raise a point on what the noble Earl has said in reply to my noble friend Lord Shinwell, would it not be as well if he gave further consideration to the observations of my noble friend on this issue? After all, the Minister is responsible for the department, and we have witnessed time and

957
time again Ministers having to tender their resignation on behalf of their department and their Ministry because of something that has gone wrong. I have in mind the Crichel Down case, which many noble Lords will remember, without going any further into that issue. After all, the Minister is responsible for the department. I think that the noble Earl would be very wise before he reaches his conclusion, as he seems to have done, if he gave this further consideration.
LORD DERWENT: Have I got the matter right? In these special cases we are talking about the Minister does not direct the policy. Parliament has said that the department, within certain limits, shall make regulations and the policy dealing with the regulations. It may be then that something goes wrong. Then the Minister who is the head, maybe indirectly the head, of that department is responsible to Parliament. But in the first instance the Minister in certain cases is not responsible for making that policy. Am I right about that?
LORD SHINWELL: Surely the noble Lord is inaccurate in that respect. No department has the power to make regulations unless with the consent of the Minister. Is not that the position? I think this question might have been put to the noble Earl the Leader of the House. Is this a precedent? If it is a precedent, say so, and I can understand the reason for it. But if it is not a precedent, if this power has never been embodied in any previous Act of Parliament, we are entitled to know the reason why it is here. If it is a precedent for some special reason associated with the paragraphs of Schedule 2—I have looked at that, and there is such a variety of implementations of regulations of a character that are unprecedented, for example, power to send people to prison and so on—I can understand that reason. If this is a precedent, if this is a unique piece of legislation, we understand the reason why.
EARL JELLICOE: I think I can answer the noble Lord, Lord Shinwell, very simply. There is no precedent being established in this sense, that the Statute Book is studded with instances in which regulation-making powers are conferred upon specific departments. The innovation here is that it is a more generalised
958
provision and the department is not specified. It will be specified in the Order in Council, and that will be subject to Affirmative or Negative Resolution procedure.
LORD HALE: Would the noble Earl forgive me if I raised one point? I am frequently wrong, and I may be wrong again. My recollection is that a number of persons are normally designated in the Statute or the Order as having power to make Statutory Instruments. This was certainly the case some years ago. But what is a department? How does a department make the law? If the senior civil servant wants to make a regulation or an Instrument and all the other civil servants in the department disagree with him, does he carry it by seniority, or whom does he consult? I do not know of any Ministry, except the Board of Trade which used to have a Board which never sat, which has even the sort of committee functions which would make it possible for a consensus of opinion to provide a semi-statutory procedure.
LORD BERNSTEIN: May I ask your Lordships to read subsection (2) leaving out the words "Minister or" and keeping in the word "department"? It says, "Minister or department", and if we left out "Minister or" it would read:
"Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated department may by regulations, make provision—
(a) for the purpose of implementing any Community obligation…"
It is not dealing with a domestic matter; it is dealing with an obligation which people in this country might know nothing about. The department would have the same power as the Minister.
3.20 p.m.
LORD LEATHERLAND: Your Lordships know I do not raise mischievous questions, but I am rather troubled about this particular clause. The noble Earl, Lord Jellicoe, has told us that it is normal for some Departments to be able to make regulations, but those regulations which it makes are within the confines of English law. We are now dealing with something quite separate. He argued that it was quite customary for the Inland Revenue and the Department of Customs and Excise to make regulations, but if he turns

959
to Schedule 2 he will see that those two Departments are specifically excluded from the provisions of this particular clause. Therefore, the Government must have in mind some other Departments—Agriculture, Trade, Environment, and so on. The noble Earl has failed so far to indicate to us which particular Departments will be endowed with this power. The clause itself talks of "any department". That carries with it a very wide scope indeed. It is very serious because, as Schedule 2 indicates, anybody who contravenes Clause 2 is liable to be sent to prison for a period of up to two years. In the first place, this is putting the British people in the grip of the civil servants of Whitehall. Perhaps that is acceptable. But it goes further than that, and puts them in the grip of the civil servants in Brussels. I think that is much further than the majority of people would like the British Parliament to go.
It has been said that the Order in Council will specify which particular Departments will have this power; but that Order in Council will be issued well in advance of the particular Department exercising its power to make regulations. It seems to me that we are putting far too much power in the hands of Whitehall and of Brussels, and taking far too much power away from the hands of Parliament.
VISCOUNT COLVILLE OF CULROSS: By dint of looking under the table I have discovered what might be a helpful precedent. I do not suppose that this is an Act which is any longer in power, but if one looks at Section 13 of the Industrial Organisation and Development Act 1947, a measure passed by a previous Labour Administration, one finds that there is power to make Orders, and the section says:
"Anything required or authorised by or under this Act to be done by, to or before the Board of Trade may be done by, to or before the President of the Board, any secretary, undersecretary or assistant secretary of the Board, or any person authorised in that behalf by the President."
So that there are precedents, I think, for other than Ministers in the case of the Board of Trade. I simply produce this as an example of previous legislation to meet the point of the noble Lord, Lord Shinwell.
LORD LEATHERLAND: Will the noble Viscount tell us whether that power was given to those civil servants to make regulations under British law, or under Brussels law?
VISCOUNT COLVILLE OF CULROSS: Under British law, as occurs under Clause 2(2) of the Bill.
LORD SHINWELL: Surely the noble Viscount will agree that an enactment of that kind, or that part of an enactment of that character, must be preceded in some part of the legislation to which he has referred by a section which empowers the Minister to issue directions to the persons mentioned by the noble Viscount, who then are empowered to carry out the regulations, to implement them, or whatever is desired?
VISCOUNT COLVILLE OF CULROSS: Not, so far as I could see, under that Labour Government Act.
LORD SLATER: Is the noble Viscount not running away from the idea that, so far as a Minister's responsibility for a Department is concerned, the Minister is responsible for everything that comes under that canopy? That is his responsibility or he ought not to be there; his appointment would never have been made. It is no use coming out with legal interpretations on a particular issue such as this, because this has been a political matter and it has been settled by forms of legislation over the years. It has been established by custom by every Government that I have known under six successive Prime Ministers, and I have seen how legislation works in the other place, and how these laws are made.
3.25 p.m.
EARL JELLICOE: I speak very much as a layman here. I think that the noble Lord, Lord Slater, was confusing two things. In my original answer to the noble Lord, Lord Shackleton, I explained that there must always be a Minister answerable to Parliament for the actions of each Department. But there are different types of Department. The noble Lord, Lord Slater, was talking about the Minister of Agriculture in the Crichel Down case; that is a Department specifically, constitutionally and politically under a Minister's control.

961
Here we are talking about a specific and particular form of Department: Government Departments which, as I have said, for reasons often deep in antiquity, are not actually constitutionally in the charge of a single Minister but of a Board or a number of commissioners, and there is this small number of them. This is the area which is meant to be caught by this particular subsection and why "Minister or department" is specified in the subsection.
LORD SHACKLETON: I think noble Lords opposite had better give up on this Amendment. I am afraid that they have not passed the examination. We shall try to give them an opportunity at a later stage. I am a little surprised that noble Lords have not actually produced specific examples. I do not doubt that there are some. The noble Viscount, fortunately—I will not call it a crib—was able hastily to look up an example, which was not in fact a particularly good example for this purpose. But I understand, and have always understood, that Departments could make regulations. Our anxiety is that we do not know what kind of regulations they are making. Although again I fully accept that a Minister is answerable, what has worried us, and has increasingly worried us, is that there is no alternative but to enforce a number of them. They are enforceable Community rights in this matter.
Furthermore, I was concerned that the noble Earl said that the type of Orders that would be made were essentially—I cannot remember his exact phrase—minor matters. Yet my noble friend pointed out that in the field of penal matters the only limitation was that a sentence in a criminal offence had to be one of less than two years. This does not necessarily seem to me to be a very minor matter, but I do not know. Furthermore, if—and this is something else that we have elicited—these are minor matters, then the major ones under subsection (1) are not susceptible, as I understand it, to the Order in Council procedure at all, unless the Government opt to do this other than within the limitations again imposed by Schedule 2—although, as I understand it, Schedule 2 refers really to subsection (2). The obligation to make an Order is only in relation to
962
those which, for some reason, are not directly applicable, or which cannot be applied without the intervention of an Order. If these are minor matters, is the noble Earl saying that all the other obligations on which no Order is necessary are even more minor matters? In the course of this discussion we have elicited some ignorance on the Government Front Bench in this matter, and further concern about the lack of clarity. I think we shall have to return to this at a later stage.
Basically our worry is that even though a Minister may ultimately be responsible, the action taken may possibly, if I understand it, be under a directive. Is it possible that a directive could give rise to such an Order? If I understand aright, it might do, and the directive might cover a very fundamental issue, and it might not be a minor matter at all. I am bound to say that I think the Government Front Bench are not prepared on this matter, or they are being less than frank; but since I regard them as honourable men I think they are just not properly prepared.
EARL JELLICOE: I wonder whether I could reply briefly to the noble Lord, Lord Shackleton, who is not, I think, conducting this particular discussion with his usual fairness. I sought to give him a full reply to what he professed to describe as a probing Amendment. I gave him a full reply and a carefully considered reply, and I am not aware that I have given any supplemental replies which are other than correct. But he asked—and since he is so anxious for homework to be done he may like to do a little homework himself—for certain examples of enactments conferring powers of subordinate legislation on specified Departments. I refer him to Section 204 of the Income and Corporation Taxes Act 1970, conferring powers on the Board of Inland Revenue; to Section 517 of the Income and Corporation Taxes Act 1970; to Section 3(6) of the Finance Act 1971; to Section 31 of the Purchase Tax Act 1963; to Section 40 of the Customs and Excise Tax Act 1952; and to Section 454(1) of the Companies Act 1948. I could continue with a very considerable list, but that may be enough for the noble Lord to go on with.
LORD SHACKLETON: I never denied that there was this power. I expressed surprise that when the noble Earl was asked to give an example he was not able to do so. He has now had a chance either to communicate with outside advisers or to look through his brief, but it would have helped us to have one or two examples at the beginning. I accepted that there was this power, but not all noble Lords did so. Although this is certainly a probing Amendment, we have not been particularly helped in this matter and it may well be that we shall wish to register our protest.
LORD LEATHERLAND: None of the examples cited by the noble Earl, Lord Jellicoe, was of Brussels legislation; it was British legislation. That is the whole issue. We want to have control over British legislation. Furthermore, all the examples that he gave were completely irrelevant, because they all dealt with taxation of one kind or another. Paragraph 1(1) of Schedule 2 states:
"The powers conferred by section 2(2)…shall not include power—
(a) to make any provision imposing or increasing taxation".
EARL JELLICOE: If I may briefly reply to the noble Lord, Lord Leather-land, the examples dealt with the administration of taxation; not with taxation. I could give a further list which has nothing to do with taxation, with its administration or with any other part of it, but I think that would rather weary the Committee at the present time.
LORD GLADWYN: On a point of information, I am not quite certain who designates. Subsection (2) states that:
"…at any time…Her Majesty may by Order in Council, and any designated Minister or department may by regulations, make provision…"
I suppose that under that formula a designated Minister could designate his own Department. That is not excluded. But I gather that there are certain Departments which cannot be designated by a Minister. By whom are they then designated? Is it by Her Majesty in the Order in Council, or is it by Parliament?
EARL JELLICOE: By Her Majesty in the Order in Council, and the Order in Council has to be subject to the Affirmative or Negative Resolution procedure.
LORD SLATER: Will the noble Earl agree that it would be rather foolish to pass legislation which meant that a Minister had no power whatever; but that in all probability a First Secretary within a Department could, for example, have power to appoint an Ambassador to Belgium, to France, to America or to somewhere else? That could come about. That is why we want to be sure of our ground in regard to the powers of a Minister, and in regard to those of the Department for which he is responsible.
3.34 p.m.
On Question, Whether the said Amendment (No. 30) shall be agreed to?
Their Lordships divided: Contents, 53; Not-Contents, 127.

CONTENTS

Balogh, L.

Greenwood of Rossendale, L.

Segal, L.

Bernstein, L.

Hale, L.

Serota, Bs.

Beswick, L.

Hirshfield, L.

Shackleton, L.

Blyton, L.

Hoy, L.

Shinwell, L.

Brockway, L.

Hughes, L.

Slater, L.

Buckinghamshire, E.

Jacques, L.

Somers, L.

Burntwood, L.

Janner, L.

Stocks, Bs.

Champion, L.

Kings Norton, L.

Stow Hill, L.

Crook, L.

Leatherland, L.

Strabolgi, L. [Teller]

Davies of Leek, L.

Lindsay of Birker, L.

Summerskill, Bs.

Douglass of Cleveland, L.

McLeavy, L.

Taylor of Mansfield, L.

Faringdon, L.

Maelor, L.

Watkins, L.

Gaitskell, Bs.

Moyle, L.

Wells-Pestell, L.

Gardiner, L.

Pargiter, L.

White, Bs.

Garnsworthy, L. [Teller]

Phillips, Bs.

Williamson, L.

Geddes of Epsom, L.

Popplewell, L.

Wright of Ashton under Lyne, L.

Granville of Eye, L.

Raglan, L.

Gray, L.

Rusholme, L.

Wynne-Jones, L.

NOT-CONTENTS

Aberdare, L.

Alexander of Tunis, E.

Balerno, L.

Ailwyn, L.

Amherst, E.

Balfour, E.

Albemarle, E.

Ashbourne, L.

Barnby, L.

Belstead, L.

Gridley, L.

Northchurch, Bs.

Berkeley, Bs.

Grimston of Westbury, L.

Nugent of Guildford, L.

Bethell, L.

Hailes, L.

Ogmore, L.

Blackford, L.

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

Onslow, E.

Blake, L.

Perth, E.

Brecon, L.

Harvey of Prestbury, L.

Polwarth, L.

Brooke of Cumnor, L.

Hatherton, L.

Rankeillour, L.

Brooke of Ystradfellte, Bs.

Hawke, L.

Rathcavan, L.

Burnham, L.

Hemingford, L.

Reay, L.

Clwyd, L.

Hereford, Bp.

Reigate, L.

Colgrain, L.

Hewlett, L.

Robbins, L.

Colville of Culross, V.

Hood, V.

Roberthall, L.

Cork and Orrery, E.

Howard of Glossop, L.

Rochester, Bp.

Cottesloe, L.

Hunt, L.

Rothes, E.

Craigavon, V.

Hurcomb, L.

Ruthven of Freeland, Ly.

Cranbrook, E.

Hylton, L.

St. Just, L.

Croft, L.

Hylton-Foster, Bs.

Saint Oswald, L.

Daventry, V.

Ilford, L.

Sandford, L.

de Clifford, L.

Ironside, L.

Seear, Bs.

Denham, L. [Teller]

Jellicoe, E. (L. Privy Seal)

Selkirk, E.

Derwent, L.

Kemsley, V.

Shannon, E.

Digby, L.

Kilmany, L.

Sinclair of Cleeve, L.

Drumalbyn, L.

Kindersley, L.

Stamp, L.

Dundee, E.

Latymer, L.

Stonehaven, V.

Eccles, V.

Limerick, E.

Strathclyde, L.

Effingham, E.

Linlithgow, M.

Stratheden and Campbell, L.

Ellenborough, L.

Long, V.

Swaythling, L.

Elles, Bs.

Lothian, M.

Tanlaw, L.

Elliot of Harwood, Bs.

Loudoun, C.

Thomas, L.

Elworthy, L.

Lovat, L.

Tweedsmuir, L.

Essex, E.

Lucas of Chilworth, L.

Vernon, L.

Exeter, M.

Macleod of Borve, Bs.

Vivian, L.

Ferrers, E.

May, L.

Wakefield of Kendal, L.

Fortescue, E.

Middleton, L.

Waldegrave, E.

Gage, V.

Milverton, L.

Willingdon, M.

Gladwyn, L.

Mottistone, L.

Wolverton, L.

Goschen, V.

Mowbray and Stourton, L. [Teller]

Wynford, L.

Gowrie, E.

Yarborough, E.

Greenway, L.

Napier and Ettrick, L.

Young, Bs.

Grenfell, L.

Netherthorpe, L.

Resolved in the negative, and Amendment disagreed to accordingly.

3.44 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 31:
Page 2, line 38, after ("for") insert ("the purpose of making any Regulation or Regulations duly issued, whether before or after this Act comes into force, by the Community Institutions, binding in every respect and directly applicable in accordance with the law of the United Kingdom, as required by Article 189 of the E.E.C. Treaty or ")
The noble and learned Lord said: As this Amendment relates closely to Amendment No. 32, I hope it will be for the convenience of your Lordships, and save time, if I move Amendment No. 31 and also deploy the arguments for Amendment No. 32. This, again, is purely a probing Amendment designed to secure information from the Minister as to how subsections (1) and (2) are to work. I am afraid that it is again a dry-as-dust inquiry and I apologise to the Committee, but I think that the question raises issues of importance to under-
966
takings carrying on business. I seek by the Amendment to write into the text of Clause 2(2) provisions that it should be possible by subordinate legislation to give effect to regulations, directives and decisions. I need say no more about the language of the Amendment than that. I do not cleave to the language; I simply put it on the Order Paper in order to base my inquiry upon it.
I suppose that when considering the Rome Treaty one has constantly to refer again and again to Article 189, which, in a sense, is the article from which practically all the directly and indirectly applicable Community legislation springs. I would remind the Committee of its provisions. It deals with three types of legislation: first, regulations which are to have general application—and I quote:
"It shall be binding in every respect and directly applicable in each member State.";
secondly, directives. I quote:
"A directive shall be binding in respect of the results to be achieved upon every member State but the form and manner of enforcement shall be a matter for the national authorities."

967
Thirdly, decisions:
"A decision shall be binding in every respect upon those to whom it is directed."
May I first put my question relating to regulations? I may be mistaken, but I had thought that Clause 2(1) would have the effect of (if I may use a slightly loose term, which I do pace the noble and learned Lord the Lord Chancellor; but this is the effect of it) making regulations part of our law. I know he does not quite accept that term; but it is near enough as a description. I had thought that Clause 2(1) would not only relate to the regulations already passed at the date of entry—in other words, the 41 volumes of them—but would also make part of our law regulations to be passed hereafter. I drew the inference that that was the case from the words in the second line of Clause 2(1):
"form time to time created or arising".
I thought that the words "from time to time "would have that effect.
Now I come back to what the noble and learned Lord the Lord Chancellor said. At one stage he said that some regulations were not susceptible of being automatically incorporated in our law in that sense, because they themselves required further legislation to give them effect. I think I am correctly repeating what the noble and learned Lord said. The first question is therefore this. When, earlier in the last debate, reference was made to regulations being given effect by subordinate legislation under subsection (2), did the Minister have in mind that type of regulation; namely, a regulation which could not be said to be automatically directly applicable because it was incomplete in its terms and required some further legislation to implement it? That is the first question.
Secondly, directives. I do not quite know where in Clause 2 there is provision enabling effect to be given to directives as they are described under Article 189, unless it is in Clause 2(2); in other words, unless Clause 2(2), with its power to use subordinate legislation—to avoid an ambiguous term—
"for the purposes of implementing any Community obligation…"
is designed inter alia to include the provision that must be made in order to comply with Article 189 in relation to directives, namely, to produce the result
968
which is aimed at by the directive. That, I suppose, would require either subordinate or direct legislation in this country; I do not see how else it could be done. The question I would like to ask is whether Clause 2(2) is designed to enable effect to be given to directives, as they are described in Article 189, by the use of subordinate legislation. May I say at once that I do not complain if that is the case; I simply ask—is it? I ask that sort of question because I think that large numbers of people, technical and otherwise, would wish to know how this is to work, and in particular how it is to work in relation to the implementation of directives.
The third question is possibly a little more difficult; it relates to decisions. May I remind the Committee that a decision is binding in every respect upon those to whom it is directed? Assume a company carrying on business in this country asks what its position would be in relation, for example, to Article 85. I have previously taken Article 85 as an example because I think it is such a very good one. That is the Article which prohibits certain practices, in effect, on the basis that they are restrictive. In particular, it prohibits the application of unequal conditions to parties undertaking equivalent engagements in commercial transactions. In other words, it says that the company must not favour one customer against another. Perhaps that is not a completely accurate summary of it, but it is, I should have thought, near enough.
So let it be assumed that the company in question has a number of customers and that it grants one customer more favourable terms than another. What happens? A decision is made. One first asks oneself, who can make the decision? If one looks at Article 155 one finds, as I see it, that the Commission can make a decision. It is to have power itself to take decisions. I suppose that means to take a decision which is within the description contained in Article 189. So one starts with the position that this company carrying on business with its various customers, giving different treatment to each, may find itself with a decision made against it by the Commission. There need be no reference, as I understand, to the Council of Ministers. Indeed, one would not expect it; it would be wholly

969
impracticable to expect that every decision of that sort should have to be considered by Ministers. There would be far too many of them and Ministers could not be expected to take up their time on that sort of issue.
Suppose a decision has been made. The effect of Clause 2(1), as I understand it, would be that Article 85 and Regulation 17 which has been approved by the Community in order to give effect to Article 85—would certainly be, as the result of Clause 2(1), part of our law. Therefore the language which I quoted from Article 85 would, in effect, be part of the law of this country. If one asks what is then the position of that company against which a decision in the assumed circumstances has been made, one has to look at Article 192; and one finds that that Article provides that:
"Enforcement shall be governed by the rules of civil procedure in force in the State in the territory of which it takes place."
The decision is one which, in terms of Article 155, is broadly designed to further the purposes of the Community. That is perfectly sensible. I do not cavil at it at all, and I am not asking these questions in a spirit of criticism but because I want to know how the thing works.
A decision in the assumed circumstances has been made by the Commission—I do not want to use language about it being Civil Service—by a non-elected body of people of high authority who, no doubt, have given most careful and honest consideration to the individual case. But it is in no sense a legal judgment. It is their decision, taken as a result of their study of the circumstances of the case; perhaps after representations have been made by or on behalf of the company, perhaps not. I suppose there would be a regular practice developed in that regard, and I should have thought that the Commission would normally wish to hear representations made on behalf of all concerned, the customers and the company. But it is a decision made by this non-legal body. One asks then what is to happen? As I have said, enforcement is to be available in the English courts under Article 192. I suppose that the complaining party could sue in English courts. They might lose. What happens then?
There is a power under Article 173 for that company to appeal to the European Court. "Any natural or legal per-
970
son "may appeal "against a decision directed to him". There seems, at first sight, to be something like a dual jurisdiction. The company, I suppose, having had a decision made against it, could at once appeal to the European Court under Article 173 and the Court might reverse the decision; I do not know. At the same time, I suppose that the claimant might issue a writ against the company under Article 192 in the courts of this country and the courts might dismiss it. holding that Regulation 17 and Article 85 were not so framed as to sustain a claim based on that commission. I believe I am right in thinking that in any event all that would come before the courts would be the question, aye or nay, has a decision been made?
The courts would not be able to investigate the grounds of the decision. I do not know whether that is right or wrong; I imagine it is so, as I read Article 192. But it seems to me that unless we have some statement from Ministers, at any rate as to the way they think this is designed to work, we may get into a considerable state of confusion. If I may summarise my own view, a decision is made by the Commission; the complaining party can go to the courts of our country and say, under Article 192, which also becomes part of our law, "Here is a decision which I produce. I do not ask you, the court, to investigate its ground. I simply ask you, the court, is this a decision?" And if the answer is "Yes", then the court must enforce that decision.
It would have to look at Article 192 to see whether that Article does produce that result. It would be irrelevant on that view whether, upon an interpretation of Article 85, the English court would have differed from the Commission. I think that is right. And the company against which the decision is made, if it feels that the decision is unjust, has the remedy that it can appeal to the European Court. It might be inconvenient to do that because you might get a decision which involved a comparatively small sum of money and the step of going to the European Court might involve considerable expenditure and delay. I dare say that cannot be helped, and one has to face it. But I should be grateful if the noble Viscount, Lord Colville of Culross, would give me such information as he is able.

971
I am afraid that this is a packet of questions and if the noble Viscount feels that he would like to consider them further I shall understand perfectly. But I hope he will agree that the matters are of importance because they affect practically every company which trades in this country. I have spoken in order to give the noble Viscount time to get his papers in order. I hope that he has now succeeded in doing that, and so perhaps I may resume my seat.
4.0 p.m.
VISCOUNT COLVILLE OF CULROSS: The noble and learned Lord, Lord Stow Hill, has asked his usual collection of very interesting and very relevant questions and I will see whether I can answer them. I would preface my remarks by pointing out to the noble Lord and to the Committee that the drafting of the Bill is not designed specifically to deal with the form of the instrument which comes from the European Communities. We do not say that subsection (1) of Clause 2 deals with regulations and that subsection (2) deals with directives and decisions. The way we have put it in the drafting is to deal with rights, obligations, powers and all the rest, from whatever source they may arise. The noble Lord is perfectly right to suggest that, within that framework of expression in the Bill, one can broadly categorise the way in which Community instruments will be given effect. Inevitably there will be exceptions from the general rule, but I think it is not misleading to deal with the situation, on the whole, as the noble Lord did.
Let me deal first with regulations. The noble Lord is perfectly right when the says that if those regulations are directly applicable, as they practically always are, Clause 2(1) will automatically incorporate them. I accept his terminology as part of the English law, subject to the explanation which my noble and learned friend the Lord Chancellor gave yesterday about the theory of this. The slight question which I think arose in the noble Lord's mind was on a point which I attempted to explain directly after dinner last night. It related to the sort of regulation which, although called a regulation, sometimes has a hybrid nature, being partly regulation and partly, as it were, directive, in
972
that one may find at the end of the so-called regulation that there is a requirement, in directive form, that enforcement of the provisions of the regulation shall be left to the member-States to implement by their own internal domestic legislation. Therefore the vast majority of the regulations imposing the obligations creating the rights and so on will be directly applicable, but it will still need some subordinate legislation whereby the enforcement is actually dealt with in this country. And, of course, the same applies in the other States. One will therefore get a hybrid situation in which part of the regulation—the part requiring States to provide that enforcement procedure—is indirectly applicable and has to be dealt with under Clause 2(2). That is the usual situation, and I hope it explains to the noble Lord how the slight anomaly to which my noble and learned friend drew attention can arise and how it would be dealt with.
Now we come to the situation in which one does not have law which automatically applies under Clause 2(1). The noble Lord, Lord Stow Hill, instanced these correctly by referring to directives. One has an instrument issuing from the Communities which requires further work on the part of the member-States to incorporate it into their law. Of course that law will be put into effect by means of different procedures in the various countries. Here we will do it in a number of ways. I should like to remind the Committee again about these, because, although the noble Lord, Lord Shackleton, is not in his place at the moment, this has relevance to the last Amendment. First, there is absolutely nothing in the Bill to prevent an indirectly applicable directive or other Community instrument from being given effect in this country by substantive legislation. It does not have to be done under this Bill if it is considered to be so important. Indeed if it involves things which are beyond the limits of paragraph (1) of Schedule 2 it cannot be done under Clause 2(2) by way of Order in Council or regulation. That is the point of the restriction in Schedule 2. Of course it can sometimes, in fact very often, be done under the powers which repose in Governments or Ministers, or perhaps Departments occasionally, under existing legislation. There may be existing Acts which enable the Government

973
to use the powers already in their possession to give effect to this directive coming from the Communities. That is the second method.
The third and fourth methods arise under Clause 2(2). The third is the straight Order in Council, which deals perhaps with an individual directive and is considered to be so important that it should be dealt with on its own as a specific Order in Council. Then there is the fourth method. I think my noble friend Lord Jellicoe was right in saying that when it came to Departments it would probably be very minor things they were dealing with. The fourth method would be dealt by regulations made by a designated Department, the designation of the Department and the delineation of its areas of responsibility having first been done by Order in Council under Clause 2(2). It would then make the regulation which it is allowed to make by virtue of that Order in Council. Those are the four methods whereby something like a directive could be given applicability in this country and would become part of what would then, of course, be our domestic law, indirectly applicable Community law. That is the way in which Article 189 would work here in that field.
As to decisions, the situation is a little more complicated because they take a fairly large number of forms. The noble Lord will see that under Article 191 there are directives and decisions and that these will be notified to those to whom they are addressed and that they will take effect upon such notification. An enormous number of these will be administrative, and they may very well not create any rights or obligations relating to individuals or companies in any country at all. They may relate to member-States, or they may tell one to do this or that if one is a country belonging to the Community, but they do not get down to the level of the individual.
Let me take the most important kind of decision which the noble Lord had in mind. This is where his connection with the commercial community in this country is so important. I refer to the decision which might occur and is dealt with in Article 192 which the noble Lord mentioned—one imposing a pecuniary obligation on persons other than States. In the first place, this is enforceable
974
because the Treaty says so, but the decision itself is susceptible of appeal to the European Court at the instance of the person to whom it is directed. I think in the first place there is a hearing before the Council before they make the decision, but after that there is a rehearing from scratch before the European Court at the instance of the person in relation to whom the decision is made. This is provided for in the Treaty. If, at the end of that time, the European Court says,"Yes, it is right that there should be a pecuniary penalty"and decides that the penalty should be so much, that penalty is enforceable, but not by the European Court, because Article 192 says:
"Enforcement shall be governed by the rules of civil procedure"—
and it is very important to note the words"civil procedure"—
"in force in the State in the territory of which it takes place."
That means that we shall probably have to make the necessary alterations to the rules of court in this country to enable that to be done. That could be done under Clause 2(2), probably by the Order in Council method. It would be an important alteration and should be dealt with immediately. If it were an English concern against whom the decision had been made it would then be enforced by the normal civil procedure in this country. That is the effect of Article 192. I do not think there is an appeal back to the European Court because the European Court has already dealt with the matter, but there will be an enforceable obligation that the enforcement will be carried out here.
I think that covers the range of questions which the noble Lord asked in relation to decisions. I am bound to say that not a lot of this is directly concerned with the facts of the noble Lord's Amendment, but I think he was less worried about those than to get the answers to his questions. If I have not dealt with the Amendments directly I hope he will forgive me, but I have sought to answer the questions that he asked.
LORD STOW HILL: I am grateful to the noble Viscount. He has given me a careful and reasoned answer, and I know he will understand if I say that I want to consider its language and think about it.

975
The only slight point that I would make is this. The noble Viscount outlined four procedures that might be used, some under subsection (2), and one at any rate was the use of Statute where the particular provision fell outside the scope of subsection (2).
VISCOUNT COLVILLE OF CULROSS: No.
LORD STOW HILL: Then I misunderstood the noble Viscount, and I must study his language carefully.
VISCOUNT COLVILLE OF CULROSS: Perhaps I can explain it to the noble Lord. Where we have domestic legislation which empowers the Minister, say, in the agricultural field, to make regulations which happen to cover the content of a directive that comes from the Community, there is no particular point, and indeed little merit, in using Clause 2(2) of this Bill—although I think technically it could be done—because we already have powers under our domestic legislation specifically designed for and specifically susceptible to doing that thing. If they are regulatory powers, they are almost certainly covered by the Affirmative or the Negative Resolution procedure. Therefore there is a ready built-in system under the domestic law whereby it can be done. It is necessary to use Clause 2(2) only where we have not already powers or where we do not think it is sufficiently important to introduce substantive legislation quite separate from all other Acts, including this one, to implement the directive or whatever it may be from the Community.
LORD STOW HILL: I am grateful to the noble Viscount for that explanation. It entirely satisfies me except that I shall wish to study it closely. With the permission of the Committee, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE LORD CHANCELLOR: In order to give effect to the Statement which is to be made, it might be convenient if I rise to move that the House do now resume.
Moved accordingly, and, on Question,
Motion agreed to.
House resumed.

INDUSTRIAL TRAINING
4.14 p.m.
THE EARL OF GOWRIE: My Lords, with the leave of the House, I should like to repeat a Statement which has been made by my right honourable friend the Secretary of State for Employment in another place. These are his words:
"With permission, Mr. Speaker, I wish to make a Statement. I have now completed the process of consultation on the proposals published for discussion in Training for the Future.
"As the House will recall there were three main elements:
"First: the development of a Training Opportunities Scheme to give a wider choice of training to meet the needs of individuals;
"Second: the establishment of a National Training Agency which would take over many responsibilities at present carried out by my Department and which would co-ordinate the continuing work of the Industrial Training Boards;
"Third: it was proposed that the levy/grant schemes of the Industrial Training Boards should in general cease after the end of 1973 and that the National Training Agency should finance out of public funds continuing incentives to key training activities.
"The Training Opportunities Scheme has been widely welcomed. The first substantial development in the Scheme starts this month. I mean to keep the pressure on expansion in order to exceed if possible the target figures set out in Training for the Future.
"The proposal for a National Training Agency has received substantial support. But many people, including the T.U.C. and the C.B.I. have expressed concern at the separation of such an Agency from the new Employment Services Agency operating within my Department.
"Before coming to any final conclusion on the ultimate form of organisation I propose to have further talks with the T.U.C. and C.B.I. The purpose will be twofold:
to co-ordinate the employment and training services;

977
and to involve employers and employees in both these activities.
"To get things moving before any permanent organisation can be established, I am reorganising the training services within my Department under a Chief Executive to match the management structure of the Employment Services Agency.
"This Training Services Agency—and naturally the permanent organisation into which it will in due course be integrated—will carry out the broad range of functions set out for the proposed National Training Agency in Training for the Future.
"These include the operation of the Training Opportunities Scheme; financing grants to encourage key training activities; meeting the administrative expenses of the Industrial Training Boards (though the staff of the I.T.B.s will continue to be employed by the Boards); and providing training services in areas not covered by I.T.B.s.
"The cost of these activities, in addition to the cost of the Training Opportunities Scheme, would—as envisaged in Training for the Future—be in the range of £25 million to £40 million a year.
"Finally, the proposals for the future operation of the Industrial Training Boards.
"Many responsible people have expressed to me their conviction that these would lead to a substantial falling-off in the quantity and, more particularly, the quality of training in important industries and that some continuing financial pressure for good training is necessary if the ground gained in the last decade is not to be lost. Nevertheless, I am convinced that the present system of levy/grant is not satisfactory.
"I therefore propose the following changes. As regards Industrial Training Board levies, smaller firms—for which the levy/grant system has never really been suitable—will be wholly exempt, and the present exemption levels will be raised.
"I shall also require Boards to exempt from the levy after 1973/1974 any firm which they are satisfied is
978
carrying out such training as is reasonable to meet the firm's own needs.
"Other firms above the exemption limit may be required to pay a levy which will not, however, exceed 1 per cent. of pay-roll; and the money will be used by Boards to encourage better training in their industries.
Adequate appeal machinery will be instituted.
"This will mean that over the next two years a great number of firms will become free of the levy complications. I believe that these arrangements will also help to ensure the maintenance of adequate and good quality training by industry.
"These, in outline, are the plans for reorganising the manpower services which are essential to the reduction of unemployment, to better job opportunities for individuals and to the proper use of manpower resources. They will take time to put into full effect. But we arc starting the rapid expansion of training and training opportunities at once."
My Lords, my right honourable friend then ended his Statement.
LORD CHAMPION: My Lords, we thank the noble Earl for repeating that Statement, which perhaps it was worth while to make before the Long Recess—that is, the Long Recess for the other place, but not for this House. We welcomed the Training Opportunities Scheme when we discussed the document Training for the Future, and the House will, I am sure, support the paragraph telling us that the first substantial expansion of the Scheme starts this month. I should be grateful if the noble Earl would expand that paragraph a little. What does the"substantial expansion"amount to? Can the noble Earl tell us something about that?
On the proposal for a National Training Agency, it will be remembered that we pressed for the creation of something in the nature of a national manpower board, which would include responsibility for training required by particular industries, retraining for redeployment and for job changing, for forecasting to meet the needs of the economy, and other aspects of employment.These, I think, are all

979
indivisible the one from the other. On this aspect we must reserve judgment until we see the outcome of the talks with the C.B.I. and the T.U.C. The phasing out of what is virtually the grant levy system is something of which I have very grave doubts. I remember when this was first mooted a member of an Industrial Training Board expressed the fear that a considerable amendment to the Scheme would result in a lessening of interest and activity by very many firms. That is something which we should very much deplore. But, my Lords, with these reservations I think that these proposals are on the whole to be welcomed.
4.20 p.m.
THE EARL OF GOWRIE: My Lords, I am very grateful to the noble Lord for what I suppose could be called his modified rapture at my right honourable friend's Statement. I can tell him a little more about the widening of the Training Opportunities Scheme. This Scheme is really now extended to meet a wider range of individuals and of activities. It also takes into account those activities which in the Government's view attain to national needs and not simply to local needs of individual firms. As to his concern for a manpower services agency, I would say that the thinking in this direction is being considerably met in the consultations we have had; but the noble Lord will be aware that these consultations are still going on and we shall not know more about them until the autumn.
The noble Lord talked about his misgivings over the phasing out of the levy system. I would say that this is really more of a sensible modification than a phasing out, and I think that if he re-reads the Statement of my right honourable friend he will see that the levy system is still remaining in operation.
BARONESS SEEAR: My Lords, I should like also to give a qualified welcome, together with thanks to the noble Earl, for this modification of the original Consultative Document, Training for the Future. I am sure we are all glad to know that the Training Opportunities Scheme is to come into action so quickly. That Scheme received support from all sides of the House, and certainly from these Benches.
980
I have some doubts as to whether the amount of money it is suggested shall go into training is going to be adequate to meet the growing needs in this field, needs with which we shall undoubtedly be confronted. However, there is no doubt that the bringing forward of this Scheme is something very much to be applauded. We are also glad to see that the Government have modified their intention to centralise training, largely at the expense of the effective work of the Industrial Training Boards which, in our view, would have been the undoubted result of the original proposals. Do I understand that for the larger firms you are retaining the levy in a modified form but not a system of grants? I believe myself that this is the case and that it is a considerable improvement, though I doubt very much whether a levy based on one per cent. of the wages bill is really going to be adequate to give the Boards the degree of financial independence which they undoubtedly need. The removal of the grant is no disadvantage and will in fact save organisations from a very great deal of unprofitable work. That development is greatly to be welcomed.
I hope I am right in reading into what has been reported that the Training Boards will continue to have real control over their own staffs, because it is on this point that the really effective work of the Boards must depend, together with their finance. As the noble Earl may remember, it was the controlling of staff by the National Training Agency about which we were deeply apprehensive. The only other point I should like to make concerns the question of the need for a National Manpower Agency rather than two separate organisations. I understood the noble Earl to say that there are two organisations, one to deal with training and the other with manpower services. I deeply deplore this. I believe that to set up two organisations would mean that we shall not get this right, and that it will be very difficult in the future to get it right because these are totally integrated activities. The suggestion here seems to me—though perhaps I may be wrong—that the change will involve great changes inside the Department. It seems to me of the greatest importance that this organisation should be as independent as it is possible to make it, and I suspect that is not what is suggested here.
THE EARL OF GOWRIE: My Lords, may I take first the noble Baroness's last point, in order to alleviate her anxiety. The noble Baroness will, I think, appreciate that this is something in the nature of a holding Statement. The main concern has been to end the planning blight, if I may so call it, which surrounded the levy grant system. That has now been ended. The decision will inevitably modify questions of organisation, nomenclature and the like, and it is about these that we are having further consultations with the T.U.C. and the C.B.I. during the Recess.
As to the noble Baroness's anxiety that the sums of £25 million to £40 million might not be adequate provision, I should have thought that those figures were left fairly wide to ensure flexibility. I would remind the noble Baroness that this is only the Government's work, so to speak, and that most of our firms undertake their own training activities as well. She asked me about the effect on the I.T.B. staff. We recognise that most Training Board staff did want to remain in the employment of the Boards and, in the situation which is now envisaged in the light of the new proposals, the Government think that this is right.
LORD MOTTISTONE: My Lords, as Director of the Distributive Industry Training Board perhaps I might also add my words and say that I welcome the Government's scheme very much. I should like to ask just one question of my noble friend. As I understood it, the levy is to be continued provided it does not exceed one per cent. of the annual payroll, provided that efforts are made to have a high cover point to exclude all those who cannot benefit from it, and that there is provision made for those firms which are already training well enough to be disengaged from the process.
My noble friend also said—and this is my main point of doubt—that the section of the Department of Employment which is to be set up pending discussions on the National Training Agency would be responsible for the financing of the Industrial Training Boards. This appears to me to be at loggerheads with the suggestion that the Boards are retaining the levy as the main source of income. Perhaps my noble friend would be able to
982
clarify that for me before I conclude my remarks.
THE EARL OF GOWRIE: My Lords, I am not sure whether I can give my noble friend off-the-cuff clarification on that point, but I will write to him.
LORD MOTTISTONE: My Lords, if the situation is as it appears to be, I should like to congratulate the Government on arriving at a very rational solution to an extremely difficult problem, the effect of which will be, I trust and believe, to continue to provide the impetus necessary to improve training throughout this country, to the ultimate benefit of us all—not to mention the individuals involved—and at the same time to remove the main exacerbations which have been irritating some firms. Well done!
THE EARL OF GOWRIE: My Lords, I am grateful for those remarks.

EUROPEAN COMMUNITIES BILL
4.30 p.m.
House again in Committee.
THE DEPUTY CHAIRMAN or COMMITTEES (BARONESS WOOTTON OF ABINGER): Amendment No. 33. I have to call the Committee's attention to the fact that if this Amendment is agreed to I shall not be able to call Amendment No. 34.
LORD STOW HILL LORD STOW HILL moved Amendment No. 33:
Page 3, line 2, leave out from ("rights") to end of line 10.
The noble and learned Lord said The noble and learned Lord said: I move this Amendment to leave out the lines referred to on the Marshalled List in order to found a question upon them. I can put the question quite shortly. Subsection (2) provides in its final words that,
"the person entrusted with the power or duty must have regard to the objects of the Communities and to any such obligation or rights as aforesaid."
What does that enable that person to do which he could not do if those words were not present. The only possible suggestion that occurred to me was that it might empower him to follow the principle of interpretation followed in a number of overseas countries, to read and take into account and seek guidance from—what is generally referred to as the

983
travaux préparatoires. If you are construing a treaty in terms of International Law before the International Court you look at the travaux preparatoires, the documents leading up to it, the debates upon it, and so on. In the courts of our country the judges do not look at what took place in Parliament. There is no absolute rule why they should not do so, but it is generally thought that it is not helpful and that the judges should seek to collect the purpose of the instrument from its actual terms. Therefore my question is: to what extent do the presence of these words enlarge the powers that would be vested in the individual referred to were those words not present?
VISCOUNT COLVILLE OF CULROSS: Again I am only too happy to try to explain to the noble and learned Lord what these particular provisions mean. Possibly I could go right through the Amendment this time because the noble and learned Lord mentioned only part of it. He has moved to leave out rather more than the part to which he has referred. His Amendment seeks to delete all the words, from rights" onwards at the end of paragraph (b) of subsection (2) to the end of line 10. The object of having those words in the Bill is that, just as we were discussing a little while ago the power to make Orders in Council, or other subordinate legislation, to give effect to things like directives—that is to say, indirectly applicable law—there will also occur from time to time the necessity to make minor amendments to our existing Common or Statute Law which derive from the arrival in this country of a directly applicable piece of law. We were referring to this yesterday when we were discussing a point on Scotland. I believe that my noble and learned friend the Lord Chancellor pointed out that this second part of subsection (2)(b) enables the necessary minor amendments to be made in England and also in Scotland and Northern Ireland.
LORD STOW HILL: That was why I did not ask a question upon those words. I thought that I had already received an answer from the noble and learned Lord.
VISCOUNT COLVILLE OF CULROSS: So the noble Lord has. I wanted to reinforce the point that there are two halves to the piece that the noble Lord
984
has moved to leave out. I will leave that, and I will come on to the second part. Here the noble Lord has been led astray a little because it is not quite what he thought; it does not relate to the courts at all. The noble Lord will remember that in my last answer to him I said that there might well be powers in existing Statutes whereby things that come from the Community, perhaps in the form of a directive, and have to be applied by our own domestic legislation, can be done under powers that the Government already have in Acts quite different from this one. I suggested agricultural Acts, but there are many others.
There is a rule in the interpretation of an English Statute, or of a regulation made under an English Statute, that although the power to make regulations appears to be given to a Minister without any fetter upon his discretion, in actual fact he is not allowed by the courts to use that regulating power to go beyond the ambit of the enabling legislation under which he is acting. The circumstances in which we may have to use the existing powers to make subordinate legislation may go a little beyond the actual background situation against which the orginal enabling Act was passed, because not only will the person making the statutory instrument have to take account of the ambit of that Act but he will be amending the law of this country in order to take account of something that has come from the Community and make that applicable indirectly in this country. He therefore needs to be given a statutory power to take into account the objects of the Community, which are largely contained in Articles 2 and 3, in the case of the E.E.C. Treaty, and he also needs to take into account the obligations and rights which the directive (let us take that as an example) says have to be applied in this country.
If one did not legislate with these words it is possible that somebody might impugn the subordinate legislation made under this other Act which I have hypothesised. It might be said that the subordinate legislation made was ultra vires because the person making it had taken into account something which he was not, under ordinary English domestic law, allowed to take into account—that is to say, the Community objects and the directive from the Community. Therefore to make perfectly certain that

985
these exercises cannot be impugned on the pure legal argument of the vires, these words have been put in, and they will enable the Minister to do what we think he ought to be allowed to do under existing legislation without fear of challenging the courts.
LORD STOW HILL: I am most grateful for that explanation. I should like to think about it a little further because I should have thought there was doubt as to whether it was necessary, bearing in mind the first four lines of subsection (4), which seem to enlarge the powers given in Clause 2(2)(a) widely enough to enable any Minister or Department to go the whole length which the noble Viscount has just outlined. Perhaps those words in subsection (2) which form the subject of my Amendment, are not necessary. However, I will not trouble—
VISCOUNT COLVILLE OF CULROSS: May I explain that? The words at the beginning of subsection (4) would not be apt. They refer to the exercise of powers under Clause 2(2) of this Bill. What I am dealing with in the words to which the noble and learned Lord drew attention in his direction are the exercise of powers under completely different legislation. That would not be covered by the first part of subsection (4), and it needs the specific words in order to attract the protection under the common law to which I have referred.
LORD STOW HILL: I can quite follow the reference to Common Law, and I will not pursue the argument further. With the permission of the Committee, I will withdraw my Amendment.
LORD DOUGLAS OF BARLOCH: Before the Amendment is withdrawn, I should like to ask a question. If I followed correctly the explanation of the purpose of subsection (2) which the noble and learned Lord has given, it is to do those things which are necessary and which are not covered in subsection (1). Subsection (1) provides for Community law which is directly applicable to take effect without any further step. But as I understand it the meaning of the phrase,"Community obligation of the United Kingdom,"is that there is an obligation on the United Kingdom to do things in order to carry out or perfect the purposes
986
which the Community has laid down. Why is it, therefore, that subsection (2)(b) says:
"… for the purposes of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above."
I understood that the effect of subsection (1) was to bring everything that was covered by it into force automatically without any delay whatsoever. Therefore what is the purpose of the reference to coming into force in subsection (2)(b)?
VISCOUNT COLVILLE OF CULROSS: The noble Lord, Lord Douglas of Barloch, is fully entitled to an answer to that question. Had it not been for the fact that I was cut short on that part of the explanation, because it was something at which we looked last night, I would have explained it. I shall now tell the noble Lord. It is quite simple. As he quite rightly says, the directly applicable law comes into this country under subsection (1). But when it does so there may be respects in which it conflicts with our existing law. It may conflict with some part of our common law, our Statute law or our subordinate legislation, whether this be in England, in Scotland or, I think, in Northern Ireland. In those circumstances, in order to a void a conflict and since we are bound by the directly applicable law, we have power in the words to which the noble Lord, Lord Douglas of Barloch, referred, by regulation or by Order in Council under Clause 2(2)(b), to put this right and to amend our existing law so that it conforms with the direct applicable law which has been imported from the Community. It is therefore to bring our domestic law in line with the directly applicable European law that comes in under Clause 2(1).
LORD DOUGLAS OF BARLOCH: I am much obliged to the noble Viscount.
BARONESS WOOTTON OF ABINGER: Is it still the wish of the noble Lord, Lord Stow Hill, that the Amendment be withdrawn?
LORD STOW HILL: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE EARL OF LAUDERDALE: It may be for the convenience of the Committee

987
if I am allowed to take Amendments Nos. 34 and 35 together.
VISCOUNT COLVILLE OF CULROSS: I would suggest to my noble friend that they raise rather different points and that we may get into a certain amount of confusion if he seeks to take them together. We have read them as separate Amendments. Would it be possible for him to move them separately?
THE EARL OF LAUDERDALE: In that case I will not move Amendment No. 34.
4.45 p.m.
THE EARL OF LAUDERDALE THE EARL OF LAUDERDALE moved Amendment No. 35:
Page 3, line 10, at end insert—
("Provided that this subsection shall not apply to obligations created or arising before the passing of this Act, which have not been implemented by all of the existing members of the Communities").
The noble Earl said The noble Earl said: This Amendment is intended to raise the question of loyalty to Community decisions and the Government's attitude to it. In between the bursts of humour and the avuncular instruction which we have enjoyed from my noble and learned and irrepressible friend who sits on the Woolsack, we have heard again and again that participation in pooled decisions is indeed the crux of joining a Common Market; the Solicitor-General has called this a continuing act of sovereignty. If this is what Parliament and the people with full-hearted consent desire, then surely Parliament and the people should be willing, able and zestful to give full-hearted loyalty to this great enterprise or else not go into it at all. If that is so, surely it is not unreasonable to ask for a reciprocity. of loyalty among the other partners. Where their Governments and people together give full-hearted loyalty then by all means let us do the same if that is the decision of this nation.
But suppose the others are less than full-hearted in their allegiance. What if the trumpet blows only to emit a sound of some uncertainty? My Amendment is to fix attention on this point. I am responsibly advised that something like 280 of the directives in force last November are still likely to be in force next January. I am informed that a further 278 have been issued since last Novem-
988
ber, making 558 altogether. At this pace—about 30 a month—one might therefore reasonably expect that by next January there will be altogether something like 700. Ai the last known count of which information has been made available from responsible sources, which was last February, something like 82 at the very least and possibly as many as 136 out of the 340 then operative were not being carried into effect in all the countries concerned. That is an astonishingly high percentage, somewhere between 24 per cent. and 40 per cent.
It will come as no surprise to noble Lords to learn that Italy, which has resisted V.A.T., is the most notorious offender. Nor will it surprise noble Lords, Francophile though I hope we all are, to hear that France is the next. After that come Belgium and Holland, in that order. Those with top marks are thus Germany and Luxembourg. Of neither Germany nor Luxembourg is it even claimed by official sources in Brussels that all directives have yet been obeyed. The "officieuse "On dit", if you like, from Brussels is that Germany and Luxembourg have simply complied "most fully". By one of those peculiarities of our language, with its many inflections of meaning and emphasis, "most fully "can mean only less than fully. It is little wonder, then, that the Commission itself has let it be known quite lately, I think two or three months ago, that it is now organising what it calls a systematic and rigorous check on defaulters with the threat of action before the Luxembourg Court under Article 189 of the Treaty.
Is it likely to be sincere to offer loyal allegiance to a Community whose members prove their own loyalty by dodging between one quarter and 40 per cent. of their obligations? Is it reasonable to be bound by directives which the others have ignored hitherto? Is there not here a stance of the newly converted, the neophyte, who, if I may say so without giving offence, is more Roman than the Romans? Would not such a "holier than thou "attitude recall and reproduce the ridiculous situation that now obtains on sanctions against Rhodesia? This "holier than thou "attitude in one of our famous national fits of morality has led us to adhere faithfully to a United Nations resolution on Rhodesia which

989
the rest of the world, including France and other partners in the E.E.C., are still cynically ignoring.
I can well understand that it might be technically difficult to give effect to this Amendment, though the Government are so resourceful in adducing arguments to smash down every critic that I cannot help feeling that, if they wanted to, they would find a way of getting this in on Report. But this Amendment relates to the pragmatic facts of life, to ordinary national self-respect. It is on that that I look forward to hearing what is the Government's attitude, and therefore I beg to move the Amendment.
4.51 p.m.
EARL JELLICOE: As I read my noble friend's Amendment it related specifically to Clause 2(2) and, as I said in answering a previous Amendment, it was our understanding—and it is indeed, I can confirm, our understanding—that, because of what we intend to do by way amount of subordinate legislation under Clause 2(2) which we shall require to make between now and January 1, 1973, in order to be able to meet our existing obligations, will be very limited in scope and extremely limited in number. We arc here speaking of a handful of instruments. It is to this legislation of course, because of the placing of my noble friend's Amendment, that this Amendment would apply. I feel, because of that, there really would be no good reason for our holding up action in this case because others may be a little behind us. In fact, some of the instruments which we have it in mind to make under Clause 2(2) we are virtually in a position to make now.
What the acceptance of the spirit of my noble friend's Amendment would mean is that, where we felt that Clause 2(2) was the right way to execute our Community obligations—and the scope here, as I have said, in order to put ourselves right by our existing Community obligations as of January 1, will be very limited—we should always have to be the very last member of the expanded Community putting himself in a position to discharge any particular obligation to the Community. I should rather like to echo what my noble friend has said in moving his Amendment: that if we
990
are going to do this thing we should do it in a full-hearted and full-blooded way, and not in a hesitant way. Acceptance of this Amendment in this particular area of the Bill would mean that we would be permanently, if I may so term it, the"tail-end-Charlie"of Europe; and I would find it neither a dignified nor a correct posture for our country to be permanently a laggard in this respect.
LORD BESWICK: The noble Earl says that this would mean our being permanently behind the others, but does this Amendment not apply only to legislation already enacted and not to the future?
EARL JELLICOE: Yes, it applies to the existing obligations; I entirely agree. But that would certainly be the spirit in which my noble friend moved his Amendment.
My second objection is that my noble friend's Amendment would mean that, instead of exercising our own discretion as to how and when to implement Community obligations through the machinery of Clause 2(2), instead of demonstrating that we still retain that right of freedom of manoeuvre which we have heard a great deal about in the last two or three days of this Committee stage, we should deliberately be reducing our independence of action by making the use of the Clause 2(2) machinery dependent on the action taken by other member States. I myself cannot believe that this is a position into which we should willingly put ourselves.
My noble friend referred to the instance of V.A.T. and on that I would merely add this. It is quite true that both Belgium and Italy have been allowed to delay the introduction of V.A.T. It was allowed in one case. I think a specific abrogation was given there and therefore they are not technically in default of any obligation. But this is not a reason necessarily for the United Kingdom to delay. We have always emphasised that, although the introduction of V.A.T. is one of the obligations of membership of the European Economic Community, our decision to introduce the tax was taken on its own merits. We believe it will be a far fairer system of taxation. That is a matter of argument; but it is not necessarily a reason that because others decide not to introduce a particular tax, we

991
should not. We are in fact introducing this particular tax on its own merits.
However, to come back to the spirit of my noble friend's Amendment, it would of course bite only on existing regulations. The noble Lord, Lord Beswick, was perfectly correct there. But I think the spirit in which my noble friend moved the Amendment was that he would certainly like us to be in such a position that we were always permanently lagging behind. I do not think that this is a posture which we should be adopting as we move into this expanded Community.
LORD BESWICK: This is an extraordinary argument: "We do not oppose what is on the Marshalled List; we oppose the spirit of it. And we knock down and dismiss an argument which does not really arise out of these words at all". I had not intended to speak to this Amendment at all, but I am reminded of the innumerable occasions when, after we have called attention to some obligations which we thought were onerous, the reply we have received from noble Lords opposite has been invariable. The reply they have given to us is that these are the rules of the club to which we have made application to join. They say, "Because those rules are there, we must obey them; we must accept them. The others have obeyed these rules. Therefore we must obey them. Otherwise we should not have applied to join. "But now we are actually being told that there are some of these rules which some of the members have not accepted; and, although they do not accept them themselves, we apparently are prepared to accept them. The noble Earl, Lord Lauderdale, is only applying in this Amendment the doctrine which has been put so often from the Box opposite: that if you go into a club you must accept and obey the rules of that club.
4.59 p.m.
LORD SHINWELL: What we are asked to accept is quite clear. It is that if the Commission, the Council of Ministers or what-have-you associated with the countries of the Six have issued a directive, whatever form it may assume, and some of the countries of the Six have failed to carry out that directive, we are nevertheless expected to implement it.
992
That is what we are asked to accept. It is as simple as that. The noble Earl, Lord Jellicoe, the Leader of the House, suggests that these directives are of such a minor form and very limited character that therefore we ought not to make a song and dance about accepting them. That is what he suggested. But how does he know that these directives are of a limited character? Reference was made by the noble Earl, Lord Lauderdale. to the value added tax; but I do not use that argument myself, if I may say so to the noble Earl. But we are unacquainted—and this is a challenge to the noble Earl the Leader of the House—with any of the directives that may have been issued to any of the countries of the Six which they may have failed to carry out, for whatever reason it may be, yet nevertheless we are expected to carry them out. We are not acquainted with them now, and when we are made acquainted with them we are expected, willy-nilly, without any opposition whatever or any rules created by us, to carry them out.
Yesterday there was a suggestion made, and noble Lords allowed me to make a personal reference. It was not a very important matter, but when I was speaking on a previous clause the noble and very attractive and charming Baroness who speaks for the Government suggested that I was indulging in mischief. There is no mischief in this. I am quite prepared to listen to a reasonable argument that has some validity, but so far I have found none. It may well be—and here I am ready to make a concession to the noble Earl the Leader of the House—that the proposition which has just been made by the noble Earl, Lord Lauderdale, might be inserted in another part of the Bill. It may be that it is not strictly relevant to this part of the Bill. I can understand that; it may even have the effect of distorting the meaning of this clause. But there is some ground for asking that it might be inserted in another part of the Bill as a safeguard—no more than that—against the acceptance of directives about which we know nothing at all, which have been issued to the countries of the Six and where there has been a failure to implement them.
The noble Earl, Lord Jellicoe, has suggested that one of the objections to this Amendment is that we must have freedom to manoeuvre. I have great respect

993
and admiration for the noble Earl, and particularly because of the difficulties that in a previous debate seemed to be facing not only him but the legal luminary sitting beside him, although I noticed that the noble and learned Lord the Lord Chancellor never said a word. This was surprising, and I should like to know the reason why. He might have cleared up the matter but he failed to do so. I cannot understand why the noble Earl should speak about "freedom of manoeuvre". Freedom of manoeuvre is precisely what we want; and surely the right course to take in order to obtain it is to ensure that we are not compelled to accept a directive which other countries have failed to accept.
I should now like the noble Earl the Leader of the House to answer this simple question. If, for some valid reason or other he cannot accept the proposition made by the noble Earl, Lord Lauderdale, because it is not relevant to this part of the Bill, will he give it consideration and, in some form, perhaps with other words but the same substantial meaning, insert it in another part of the Bill? I ask that question but with no great measure of optimism because it seems to me that we have reached a stage where we cannot expect that any single Amendment, however well argued or however well presented, however factually correct it may be and however desirable it should be that Members of your Lordships' House, in order to safeguard British interests, should accept it, will be acceptable to the Government. So what is the use? We might as well have a closed shop. We can argue until we are blue in the face, but it is no use. Is it because the proposition made by the noble Earl, Lord Lauderdale, has no substance in it? I think that even the noble Earl the Leader of the House has some sympathy for him because he used words which indicated sympathy. Therefore I ask the noble Earl, Lord Jellicoe, whether he will not reconsider accepting this Amendment.
5.6 p.m.
THE EARL OF LAUDERDALE: I should like to ask my noble friend Lord Jellicoe one or two questions. In his incomparably charming and friendly way he has imputed motives to me, and I am
994
quite certain that he will not mind if I remind him of the Parliamentary tradition that one may impute bad judgment, even stupidity, to somebody but one never imputes doubtful motives. On the subject of motives the noble Earl will not, of course, be surprised to know that the longer the Government stonewalls the darker my motives are certain to become. The suggestion that I was putting forward the proposal that we should choose to be a "tail-end Charley "if we go in was not correct, and that point was answered effectively by the noble Lord, Lord Beswick. This Amendment refers to what has been done, or incompletely done, so far; it does not refer to the future.
My hopes rose a little when my noble friend Lord Jellicce picked with some force on the suggestion that this Amendment has in fact been moved in the wrong part of the Bill. I should not be a bit surprised if that is so. When we started this Committee stage we did so on the assurance that we were not going to be a rubber stamp and I myself believed that we would find the Government, when faced with a real issue, however crudely and ignorantly expressed, willing to find the right way of dealing with it, if it could be dealt with. Therefore as my noble friend picked on the fact that this is the wrong part of the Bill for such an Amendment I still hope that he will be able to say that on Report the Government will be able to produce something of their own that meets this point.
The point is a simple one and it is not a matter of trivia. At the last count somewhere between 24 and 40 per cent. of directives were still so seriously and blatantly ignored that the Commission were preparing, at any rate in 24 per cent. of the cases, to institute proceedings before the court—or so they let it be known. That is not a fact that can be laughed off. If a quarter of the directives have not been implemented by the partners who we are proposing to join it does suggest some lack of confidence on their part.
Because it is a matter of importance and not a trivial detail I look forward to hearing something a little more encouraging from my noble friend than we have had hitherto. I will forgive him his imputation to me of dark motives if he

995
will come halfway and offer to do something on Report.
EARL JELLICOE: I am sorry if my noble friend thought that I was imputing motives to him. I was simply "lifting" his own phraseology, but perhaps we can leave it at that. We must remember that we are joining what is essentially a partnership or club and that there are rules of the club which we and the other members must obey. All the member-States accept the rules of the club, and as we are prepared to join this extended Community we, too, are accepting the rules and obligations of the Community. However, in this imperfect world it is idle to pretend that every country is always perfect in implementing its obligations; there are bound to be conflicts from time to time about the interpretation of those obligations. Indeed, I suggest that it is a corollary of the fact that there are common rules for members of the club that there must be machinery and procedures for policing those rules. That is why it is reasonable and understandable that questions should be raised from time to time centrally by the Commission about the performance of member-States in implementing their detailed obligations.
I should like to look into the statistics which my noble friend adduced and, frankly, I was surprised to hear some of them. They do not correspond with my personal knowledge of the facts. The fact that the Commission may be questioning the implementation of a particular obligation does not mean that the instrument or directive as a whole is not being complied with; it may be that some particular aspect of it is in doubt. I should therefore like to look into the statistics given by my noble friend.
What worries me about the Amendment is not so much its placing in the Bill—where he proposes to insert it would make it bite on things which I do not think he would necessarily wish it to bite on—as its wording. It says:
"Provided that this subsection shall not apply to obligations created or arising before the passing of this Act, which have not been implemented by all of the existing members of the Communities."
There are obligations which it is absolutely in our interest fully to implement between now and January 1. If we
996
were to carry over the spirit which lies behind the Amendment into the rest of the Bill, we should tie our hands absolutely. I therefore ask my noble friend to ask himself what would be the position if all the member-States resorted to this particular device. It would mean that none of the obligations could ever be executed. That would be an absurd position and would be totally contrary to the partnership which we wish to enter. That is my broad reply to my noble friend, but I will look carefully at what he said, and particularly at the statistics he adduced.
5.14 p.m.
THE EARL or LAUDERDALE: I am obliged to my noble friend for, as usual. giving a careful and helpful reply. It seems, however, that we are talking different languages. The Government say that we are joining a club. that all the members must obey the rules and that that is why we must accept the rules in advance. Let us leave exact statistics out of this, although I assure my noble friend that my figures come from very reputable sources. The fact remains that about one-quarter of the directives currently in effect are being ignored. My noble friend says that we must accept them all. If I felt confident that our intended partners were equally sincere in hurrying to fulfil them all and that the laggards were lagging merely on questions of minor legal and procedural points, things might be different, but these are matters about which the Commission in Brussels are extremely anxious.
They have let it be known through their own channels that they are drawing the attention of all members to the laggards; they are reminding all members of the processes of sanction including arraignment before the Luxembourg Court; and they are making it freely known through their propaganda organs that they are prepared to go after the laggards and bring them to the Court. This is not a little matter. I do not like dividing the Committee and it gives me no pleasure to vote against my Government. Nor do I like abstaining. I prefer to support the Government and I do so wholeheartedly whenever I can. I am usually able to do so over every other issue. It is with the greatest reluctance, therefore, that I must press this Amendment to a Division.
5.17 p.m.
On Question, Whether the said Amendment (No. 35) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 150.

CONTENTS

Balogh, L.

Gray, L.

Serota, Bs.

Belhaven and Stenton, L.

Greenwood of Rossendale, L.

Shinwell, L.

Bernstein, L.

Hall, V.

Slater, L.

Beswick, L.

Heycock, L.

Somers, L.

Blyton, L.

Hughes, L.

Stocks, Bs.

Brockway, L.

Lauderdale, E. [Teller.]

Summerskill, Bs.

Buckinghamshire, E.

Leatherland, L.

Taylor of Mansfield, L.

Crook, L.

McLeavy, L.

Watkins, L.

Douglass of Cleveland, L.

Maelor, L.

Wells-Pestell, L.

Energlyn, L.

Morrison, L.

White, Bs.

Foot, L.

Phillips, Bs.

Wright of Ashton under Lyne, L.

Garnsworthy, L. [Teller.]

Segal, L.

Wynne-Jones, L.

Granville of Eye, L.

NOT-CONTENTS

Aberdare, L.

Emmet of Amberley, Bs.

Monk Bretton, L.

Abinger, L.

Essex, E.

Mowbray and Stourton, L. [Teller.]

Ailwyn, L.

Exeter, M.

Albemarle, E.

Falmouth, V.

Napier and Ettrick, L.

Alport, L.

Ferrers, E.

Netherthorpe, L.

Amory, V.

Fortescue, E.

Northchurch, Bs.

Ashbourne, L.

Gage, V.

Nugent of Guildford, L.

Astor of Hever, L.

Garner, L.

Ogmore, L.

Balerno, L.

Goschen, V.

Orr-Ewing, L.

Balfour, E.

Gowrie, E.

Penrhyn, L.

Belstead, L.

Grantchester, L.

Perth, E.

Berkeley, Bs.

Greenway, L.

Polwarth, L.

Bessborough, E.

Gridley, L.

Rankeillour, L.

Bethell, L.

Grimston of Westbury, L.

Rathcavan, L.

Blackford, L.

Hailes, L.

Redmayne, L.

Blake, L.

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

Reigate, L.

Bledisloe, V.

Rhyl, L.

Boyd of Merton, V.

Harvey of Prestbury, L.

Robbins, L.

Brecon, L.

Hastings, L.

Roberthall, L.

Brentford, V.

Hawke, L.

Rothermere, V.

Brock, L.

Hemingford, L.

Ruthven of Freeland, Ly.

Brooke of Cumnor, L.

Hereford, L. Bp.

St. Just, L.

Brooke of Ystradfellte, Bs.

Hewlett, L.

Saint Oswald, L.

Burnham, L,

Hives, L.

Sandford, L.

Camoys, L.

Hood, V.

Selborne, E.

Carrington, L.

Howard of Glossop, L.

Selkirk, E.

Chelmer, L.

Hurcomb, L.

Sempill, L.

Chorley, L.

Hylton, L.

Shattesbury, E.

Clwyd, L.

Hylton-Foster, Bs.

Sherfield, L

Coleraine, L.

Inchyra, L.

Sinclair of Cleeve, L.

Colville of Culross, V.

Jellicoe, E. (L. Privy Seal.)

Stonehaven, V.

Colyton, L.

Kemsley, V.

Stradbroke, E.

Cork and Orrery, E.

Killearn, L.

Strathclyde, L.

Cottesloe, L.

Kilmany, L.

Stratheden and Campbell, L.

Cowley, E.

Kindersley, L.

Swaythling, L.

Craigavon, V.

Latymer, L.

Teviot, L.

Cranbrook, E.

Limerick, E.

Thomas, L.

Crathorne, L.

Long, V.

Trevelyan, L.

Croft, L.

Lothian, M.

Tweedsmuir, L.

Daventry, V.

Loudoun, C.

Tweedsmuir of Belhelvie, Bs.

De L'Isle, V.

Lucas of Chilworth, L.

Vernon, L.

Denham, L. [Teller.]

Lyell, L.

Vivian, L.

Derwent, L.

Macleod of Borve, Bs.

Wakefield of Kendal, L

Digby, L.

Macpherson of Drumochter, L.

Waldegrave, E.

Drumalbyn, L.

Mancroft, L.

Ward of Witley, V.

Dundee, E.

Mar, E.

Wolverton, L.

Ebbisham, L.

May, L.

Wynford, L.

Eccles, V.

Merrivale, L.

Yarborough, E.

Elles, Bs.

Meston, L.

Young, Bs.

Elliot of Harwood, Bs.

Middleton, L.

Zuckerman, L.

Elworthy, L.

Milverton, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.26 p.m.
LORD SHACKLETON LORD SHACKLETON moved Amendment No. 38:
Page 3, line 15, at end insert—
("(2A) It shall be the duty of the Law Commissions for England and Wales and for Scotland to bring and keep under review the coming into force and the operation from time to time of subsection (1) above and to report thereon to Parliament within not more than six months of the date upon which by virtue of such operation any enforceable Community right, power, liability, obligation, restriction, remedy or procedures takes effect.
(2B) Every such report as is referred to in subsection (2A) above shall—

(a) state the relevant enforceable Community right, power, liability, obligation, restriction, remedy or procedure;

(b) report upon all matters arising out of or related thereto;

(c) report upon any other matters which in the opinion of either of the said Commissions ought to be considered by Parliament in consequence of or in connection, whether direct or indirect, with any such matter; and

(d) make such recommendations to Parliament as may appear to be appropriate.

(2C) In the exercise of the powers arising by virtue of subsection (2)(b) above the person entrusted with such power shall have regard to any such report as is referred to in subsection (2A) above.
(2D) Any such report as is referred to in subsection (2A) above may be made by the said Commission jointly or by either or each of such Commissions separately, as the circumstances of the case may require.")
The noble Lord said The noble Lord said: I rise to move Amendment No. 38. For noble Lords who have it in front of them, this gives a rather lengthy passage (virtually a new subsection or it could even be a new clause) which will require:
"… the Law Commissions for England and Wales and for Scotland to bring and keep under review the coming into force and the operation from time to time of subsection (1) above and to report thereon to Parliament within not more than six months of the date upon which by virtue of such operation any enforceable Community right, power, liability, … takes effect."
I would remind your Lordships that subsection (1) deals with directly applicable obligations, restrictions, et cetera, achieved by regulation or by other means, and it does not, if I read my own Amendment correctly, deal with those coming under subsection (2). It may well be that the noble and learned Lord, the Lord Chancellor, understands my own Amendment better than I do. The important point about this matter is that we are
1000
liable to have a number of enforceable and directly applicable obligations made by the Council or the Commission which may gradually have some effect on our own law, and indeed in certain respects they will do. In certain cases it will be necessary to pass new Orders or even legislation to give them effect. But there is a mass of regulation. most of it in my view not of great major significance. I do not wish to exaggerate in what might be called terms of quality or in terms of weight the significance of these; none the less, they will be of some significance. Furthermore, we do not know as yet what sort of effect they are going to have.
Last night we urged the Government to ensure that Parliament was informed of all new obligations. That was rejected by the Government for reasons which I confess I found totally unsatisfactory, and we shall return to that point in due course. But I am bound to say that on the Government side they said that there was nothing to prevent people knowing, because these are all published in the Official Journal, and in any case they gave undertakings that Parliament would be informed. However, what we are not clear on is what effect it will have on the law, and I should now like to refer to the main purpose of this, which is to get the two Law Commissions to report on these matters, to study them and in due course no doubt to contribute to such consolidation or tidying up of the law as may be necessary.
The Law Commissions were set up in the Act of 1965, which was introduced by my noble and learned friend Lord Gardiner. If I may say so, it was one of the most constructive and valuable Acts carried through in the previous Government, and we owe a great debt to him, as indeed we do to Sir Leslie Scarman and the members of the Law Commission. The fact that Conservative spokesmen, both here and in another place, poured cold water on the idea was a temporary phase of opposition. I looked the debate up and found that the noble and learned Lord the Lord Chancellor, who was then in another place. had not spoken on it. I should not have held it against him if he had.
THE LORD CHANCELLOR: My recollection is that the noble Lord is not quite right, and that this Conservative

1001
spokesman, at any rate, gave it a modicum of praise, which it certainly deserved.
LORD SHACKLETON: I specifically exculpated the noble and learned Lord, and I am very happy that he, as Lord Chancellor, bears a special responsibility for carrying on the work of my noble and learned friend. At times one has almost seen—I almost said an unholy alliance—a holy alliance between the two. There is no doubt that the Law Commission is a most admirable institution, and I can think of no body better qualified to deal with this. Indeed, I would assume from looking at the Statute that this might well come under the duties of both the Scottish and English Law Commissions, under Section 3, the "Functions of the Commissions". I am very conscious that the Law Commission has done some first class work which has led to a great deal of improvement in our law and a great deal of tidying. Some noble Lords will remember the extraordinary list of Acts of Parliament bearing on the subject of marriage which my noble and learned friend read out—I think it took up a whole column of Hansard—as an example of the need for this type of law revision procedure. It would certainly not be my wish to add to an overburdened Law Commission, nor is it really necessary, I suspect, to put this particular matter into an Act of Parliament. But I would make two further observations, and then I shall await with great interest the noble and learned Lord's reply.
On the one hand, I think the Government have been at pains to suggest that the amount of new legislation, the volume of Community law and of rulings through the Court at Luxembourg, is not as great as some people fear it to be, in which case it would be well within the competence of the Law Commission. I seem to remember that there is provision for the Minister to request them to carry out certain types of research and work. If it is not too great, then they can take it in their stride; if it is very great, there is all the greater need for it to be done. I realise that it is not just a question of adding to the staff and spending more money; the great problem is to get the quality of people we have in the Law Commission to-day, and that is very difficult with such demand on the time of judges and others who are required constantly. When any Government gets
1002
into trouble they send for the judges, that is, unless the Official Solicitor can do it for them. So I am not wishing to add to the difficulties of the high calibre legal brains that we have.
I think this raises a worthwhile point. I shall be interested in the reply. If the Amendment as it stands is unsuitable or defective, I am sure that the noble and learned Lord will not rely on that fact to dismiss the idea. Nor is it, if I may say so—subject to a friendly and clear and intelligible reply, such as we expect from the noble and learned Lord—my intention to divide upon it. But we will see how the debate goes. I beg to move.
LORD GARDINER: I think my noble friend Lord Shackleton has performed a public service by putting down this Amendment. I am unable to support it as it stands, for the simple reason that I am reasonably satisfied that if duties as detailed and onerous as those in the Amendment were imposed on the Law Commission the whole of the rest of its work would come to a complete standstill. But I have no doubt that the Law Commission has certainly an important part to play in this field; that is to say, those alterations in our law which will result from our joining the European Community; and I agree with my noble friend Lord Shackleton that the functions of the Law Commission, as defined in Section 3 of the Law Commissions Act 1965, clearly include this.
I would however remind the Committee that the Law Commission as constituted is not a Government body; it is an independent statutory body. About its only connection with the Executive is that while it itself composes its own future programme, it has to submit this to the Lord Chancellor, and the Lord Chancellor can say, "You are not to do that one". We put that in because we thought, "It may be that the Law Commission will put up a programme including, say, trade union law, at a time when a Government, although it had not announced it, had decided to appoint a Royal Commission on trade union law", in which case the Law Commission would simply be wasting its time. That is why, although I think it has happened only on one occasion, or possibly two, the Lord Chancellor can say, "I do not want you to look into that point";

1003
what he cannot say is "But you are to do this". The Executive has no power under the Act to make the Law Commission choose any particular subject matter. It would, therefore, be a change if even Parliament itself was so to decide.
This does not mean that in practice there has been any sort of conflict between the Lord Chancellor and the Law Commission. Naturally, they are all friends together in real life, and of course they discuss together amicably what the next programme of the Law Commission should be. But the Law Commission is very much in touch with public demand in this field, because it has become the nation's receptacle for any complaints by anybody against an existing law which he wants to get changed, and it has always been one of the features of the Law Commission that it is extremely good at consultation.
One is a little surprised to learn that the Government are only now starting to turn their attention to the important question of Parliamentary control and are to set up some very speedy Joint Select Committee, because one would have thought they would have started on that about a year ago. I assume that the Government have long since consulted the Law Commission as to its view of the part which it should play in this field. I should be very reluctant to express any concluded view myself until I know, which I do not, what the Law Commission's own views are. I think that this is a very proper subject to raise by this Amendment, and I also shall await with great interest what the noble and learned Lord the Lord Chancellor has to tell us.
5.41 p.m.
THE LORD CHANCELLOR: I am grateful to both noble Lords who have raised this subject. I do not have a great deal to add to what the noble and learned Lord, Lord Gardiner, has just said. I absolutely accept his construction of Section 3 of the Act, which was the same as that of the noble Lord who proposed the Amendment. The Law Commission, under its existing terms of reference, will have quite an important task to fulfil when we accede to the Community, because their existing task, as Section 3 indicates, is to keep the law under review with a view to its systematic devel-
1004
opment and reform, including in particular the elimination of anomalies and the repeal of obsolete and unnecessary enactments. It follows from that, as Community law develops, the impact of both the directly and the indirectly applicable parts of Community law must come constantly within their purview. Nothing that I say now is intended to restrict or to diminish the importance of what they will then be doing. It is an essential, and very useful, part of their task.
I would agree with the noble and learned Lord that the immediate effect of passing this Amendment would be to bring everything to a grinding halt, because among its other provisions the first report envisaged by the Amendment would have to be brought out within six months of the operation of the Common Market law, and of course that would be a herculean task. Once the first influx of the so-called 42 volumes, or whatever it is, has been dealt with, it might just be possible to keep up-to-date, but the immediate impact would be a herculean task combining the completely unimportant and trivial, which would still have to be scrutinised, with the important and vital. I would perhaps go a little further than the noble and learned Lord, Lord Gardiner; having said what I have said about the important task which the Law Commission will have to fulfil, I would respectfully say that it is not an appropriate vehicle for taking the place of what we have been talking about repeatedly during the Committee stage and what both my noble Leader and the noble and learned Lord, Lord Diplock, referred to on the Second Reading: Parliamentary control. I cannot emphasise enough that my view is that Parliament must discharge the vital role of keeping under scrutiny the whole of the operation of the Common Market as it affects this country, both as regards the activities of Ministers within the Common Market institutions and as regards the impact of Common Market policy upon the interests and well-being of this country. This will become an important role of Parliament in the new situation.
I keep on saying that I hope and believe it will be the genius of Parliament to generate the necessary mechanisms whereby that absolutely indispensable task can be discharged. As I see it, there are at least two things which have to be done almost as a matter of urgency.

1005
One is to have a scrutiny committee, which will be able to disentangle the trivial from the important in order that the attention of Parliament can be directed to the right objects, and the second is what I think the noble and learned Lord, Lord Diplock, had more in mind in his speech, of trying to find out, at the point of time at which policy comes to be formed, exactly what the interest of this country is and what the duty of Ministers may be to press that interest within the Community institutions. Neither of those two functions can be done by the Law Commission, not only because the work is too onerous if it is to carry out its existing tasks, but also because it is not the appropriate vehicle. It must be done by Parliament, and it must be done by organisms and mechanisms directly under the control of Parliament. What those mechanisms will be is of course a matter for discussion.
I did not altogether go along with the noble and learned Lord, Lord Gardiner, in saying that we ought to have done it a year ago. These mechanisms can be generated only by all-Party discussion. So long as we are faced with an Opposition which, for reasons I will not canvass in connection with this Amendment, is determined at all costs to oppose, so far as its internecine conflicts will enable it to do so, our entry into the Common Market, and to seek to impose inappropriate statutory controls, it is not easy for these conversations to get off the ground. I have said—and it is not mere lip-service to the principle—that, speaking for myself and I hope speaking to a number of fairly fertile intellects on the other side of the House, the sooner it gets off the ground the happier I at any rate shall be, and I suspect the happier my noble friend the Lord Privy Seal will be. However, that is only by the way on this Amendment.
The only other thing I want to say about it is that the Law Commission—and it is as well to get this clearly in mind—is essentially a law reform body. In a sense all Statutes reform the law because they alter it. The Commission is not realy useful for the purpose of selecting or canvassing law reforms which deal with great questions of national policy. I hope I am not being indiscreet in disclosing this, but I know, for instance
1006
that the noble and learned Lord, Lord Gardiner, when he was Lord Chancellor, discouraged the Law Commission—I do not know if he actually opposed it in detail—from entering into the very important question of policy in relation to personal injury accidents on a "no fault, no liability basis, because it involves such important questions as national policy. I expressed the same opinion when I came into office.
Many of these questons of directly applicable law in the economic field—and that spills over into the social field in almost every feature—are questions upon which the Law Commission is not constituted to give a really useful opinion. The noble and learned Lord gave an example of trade union law. The Law Commission is extremely good at consultation, it is extremely good at its own job, but after a bit of experience of it, one gets to know that it does not take the place of Royal Commissions, or Committees of the House, or of Joint Committees, in pursuing objects of social and economic policy of a more directly politically contentions kind. Having said that, I hope that I have given a fair answer to the noble Lord, Lord Shackleton.
As regards the particular Amendment, there is much work to be done by the Law Commission in this respect, and I look forward to its doing it, but I do not think it will do the job designed for it in this Amendment. To allow oneself to say that it can take the place of Parliamentary mechanisms of the kind envisaged by the noble and learned Lord, Lord Diplock, might even be a dangerous mistake, because the sooner we get those off the ground I think the better the interests of this country will be safeguarded.
5.50 p.m.
LORD HALE: I did not rise earlier, because I apprehended the possibility that the noble and learned Lord might give a rather more favourable answer, in view of what the noble and learned Lord, Lord Gardiner said; and none of us would challenge what he and the noble and learned Lord the Lord Chancellor have said. One did not despair of the acceptance of the Amendment as drawn. But there is a principle here, and I venture to think that, in talking of Parliament as the guardian of the revision of laws, Parliament may

1007
well be the instrument which will create the necessary institution. Yesterday we discussed at some length the problems of conflict of laws within the Community, and it seems to me that something like the Law Commission, some organisation with the same sort of membership as the Statute Law Revision Committee, or some independent legal institution which commanded public confidence, could perform one or two functions of absolutely vital importance.
I say with complete sincerity that anyone who reads the reports of speeches, such as those made by Mr. Barber and so on, on the Common Market will realise the spirit of co-operation, the desire for understanding and the desire to accommodate differences. I apprehend that it is more than likely that the conflict to which I made brief reference yesterday between the Court of Luxembourg and the Conseil d'Etat, or between the Court of Luxembourg and the High Financial Court in Germany, might have been avoided by a little more early consultation. I do not think this duty can be performed by people like the Avocat-General, who will be appointed to the Court of Luxembourg. It may well be that the Commission would very much welcome the opportunity of having an independent body to whom they could say, "Look here! We are contemplating doing this, but we do not want to infringe your laws or the spirit of your laws if you can help us to do what we want to do without causing a conflict. "In other words, it would be a body which could consider. One of their duties would be to consider foreign laws to the extent of finding out whether they can make a contribution or lead to a rethinking of British law reform, and I do not think there is any question that they can.
There is a Law Commission for England and one for Scotland, and when I was a member of the Royal Commission on the Police it was rather sad that we had to hear evidence in Scotland, in England and in Wales. But we generally came to the conclusion that Scots law was a dashed sight more sensible and more practical than English law, and that it had very considerable virtues. I can speak only for myself—and I am not sure that I even have a right to speak for myself in a matter of
1008
that kind—but I believe that was the view of many of my colleagues on that Commission which, with the exception of myself, was an extremely distinguished one made up of men of great eminence in the law.
I ask the noble and learned Lord to expand himself a little on this matter, and I shall tell him why. In a very able and lucid speech yesterday which came near to convincing me, he replied at some length on this question and made reference to our written Constitution. He rather naturally referred to Magna Charta and to the Declaration of Rights. I have been checking up in the Library and I found that every section of Magna Charta was repealed long ago. It referred, in the main, to Barons and, as Disraeli said, at the end of the Wars of the Roses there were not as many Norman Barons as a wolf—
THE LORD CHANCELLOR: I do not think the noble Lord read the 1297 Revision.
LORD HALE: Yes, I really did. I gave way, perhaps rather foolishly, in the middle of a sentence which is more than the noble and learned Lord usually does, though he is very generous about giving way. But I read the 1267 Revision and the 1297 Revision, and I read Section 8 of the Declaration of Rights which enunciates the great principle. I was not at all intending to say that the noble and learned Lord is wrong. I was intending to say that he is right. What I intended to say was that I doubt whether the Commission in Brussels would understand it, or whether the Commission in Brussels is likely to be so versed in the history of Parliamentary institutions as to know that these matters are blood of our blood and bone of our bone.
Something that is worrying us about these proceedings is how much is being sacrificed and how much of the records made illustrious by the names of so many noble Lords who sit opposite, who fought for freedom and for liberty, who fought for the Declaration of Rights, who fought for Parliamentary rule are being changed. I do not now see the noble Lord, Lord Inglewood, sitting opposite, but his is a name which made the scaffold illustrious in the history of tolerance, of democracy and of Parliament. I certainly did not intend to criticise the noble and learned

1009
Lord's reference to documents which are part of the golden pages of our history. But what would the Commission in Brussels know about all this? I am not saying that they are not men of learning and eminence, but what do we know about the Parliament of Paris or the Parliament of Bordeaux in the eighteenth century? How many of us could get up and make a speech about the procedure of the tribunals and the rules by which they were governed?
So I suggest quite sincerely to the noble and learned Lord that the Amendment moved by the noble Lord, Lord Shackleton, has in it a great idea. It may be that between now and Report stage it will be reconsidered by the Government. I think it was the noble and learned Lord, Lord Gardiner, who said that one ought to take time to take the opinion of the Law Commission themselves and see what they have in mind. But an independent commission appointed by Parliament or by command of the Lord Chancellor, who could communicate with Brussels and publish a periodic report to Parliament and, who could, in case of emergency—because it does not take long for a serious question to arise if there really is a conflict in sight—immediately report, might be a very considerable solution to those problems of law on which the noble and learned Lord, Lord Dip-lock, spoke with such clarity and so ably on Second Reading, and might be something well worthy of very real consideration.
LORD GARDINER: I was naturally extremely interested in what the noble and learned Lord the Lord Chancellor said on this Amendment. Of course I am the first to agree that the Law Commission could not, and would not, seek to take the place of, for example, a joint select committee. On the other hand, we both agree that, in general, these changes in the law would be within their remit under the Act. I gather that the noble and learned Lord has not yet had very much opportunity to consult with the Law Commission about what they think their role in this matter to be. It may be that by Report stage—and the matter could be mentioned again on the Question, Whether the clause shall stand part of the Bill?—he will be in a better position to tell us the views of the Law Commission.
1010
I know they think that they are just about the right size, and they have always been opposed to building up a sort of legal empire. But on any view this obviously means some additional work for them. Perhaps by Report stage the noble and learned Lord can also tell us whether, to the extent that that is so and they would need some additional staff, that would be provided by the Government.
6.0 p.m.
LORD SHACKLETON: I am a little disappointed with the noble and learned Lord's reply. I moved my Amendment in extremely moderate terms, and although I accept his conclusions in general terms, as I do those of my noble and learned friend, I cannot accept that somehow I was implying that the Law Commission should concern itself with policy which ought to rest with Parliament. This was no part of my speech; nor was it any part of my Amendment—beyond asking it to make such recommendations as might happen to be appropriate. The Law Commission has done a most valuable job in terms of policy (if one may apply that word to the law) in devising new legal policies. This has been a major part of its work, as I understand it. I do not know how much has been concerned with consolidation (perhaps that has not been a major part) and in Statute Law revision. This has been written into Acts of Parliament and it is in this area that it seemed to me, and to others of my noble friends, that it was appropriate that the Law Commission should make the sort of valuable contribution it has been making with regard to English law.
I very much regret that the noble and learned Lord should suddenly launch into an attack on the Opposition because at this moment they would not talk about a Committee. I made a passing reference (and I admit that he may think I was provocative in so doing) to the fact that the Government refused to accept our earlier Amendment designed merely for the provision of information to Parliament. We all agree that Parliament has a particular role. We were not discussing that.
THE LORD CHANCELLOR: The noble Lord is overlooking the fact that I was replying to direct criticism from

1011
the noble and learned Lord, Lord Gardiner, that we ought to have been thinking of this a year ago. I explained why we had not done so. I do not know why the noble Lord should be so sensitive. I was not launching an attack; I was explaining why we had not done so.
LORD SHACKLETON: My noble and learned friend was asking whether the Government had been discussing this with the Law Commission. This was a different point. He was not talking about Parliament. The noble and learned Lord has a point on this question of inter-Party discussion. But we are not talking about that; we are talking about the Law Commission. We have had a very full debate. We discussed the matter against the background of the speech of the noble and learned Lord, Lord Diplock, and, above all, of the need for Parliament to have this information. But we are not now talking about Parliament. I should have thought that this was an appropriate subject.
What I would ask the noble and learned Lord to do—and this, I think, is not unreasonable—is to discuss this matter with the Law Commission. It is perfectly appropriate and constitutional for Parliament to impose obligations on the Law Commission. They did so in the Act of 1965. We certainly would not wish to press this on them. Indeed, I suspect, as my noble and learned friend has remarked, and as the noble and learned Lord the Lord Chancellor has remarked, that this could come within the area of their responsibility. Nor do I think it would necessarily be such a vast subject, because it would surely not fall to the Law Commission to have to concern itself with very minor regulations in the fields of customs or agriculture. We have been told that the number of important matters of this kind is comparatively small.
What we are asking is that there should be a proper consolidation; that there should be a consideration, at least, and that there should be a report on them. We accept that six months may not be the right figure, and indeed that the obligations may not be the right figure. I wish that the noble and learned Lord—and I will put this to him with all seriousness—would now consider the purpose
1012
behind this Amendment. I should have thought—and this is not an unreasonable request; it is conciliatory—that he should now discuss this matter and ask the Law Commission to consider this problem. I do not necessarily want to return with a further Amendment. Least of all, do I want to divide the Committee on this Amendment. But this is a matter on which the Government could show a little more sympathy of the kind which was evinced in the earlier part of the noble and learned Lord's speech but was absent from the middle of it.
THE LORD CHANCELLOR: I do not know what the noble Lord is asking me to do. I am constantly in touch with the Law Commission. The reason I did not give an assurance that I had already done so on this particular point was that I wanted to check for certain that it had been done. Both my officials and I are constantly in touch with the Law Commission on the whole range of its activities. I shall certainly find out what the Commission think about it. I now find that, as I thought, I have discussed this; and in fact, as I thought (the difficulty is that I am very close to the Chairman of the Law Commission and I never know how many of our close discussions can be disclosed; although I am now told that this can be disclosed) the Commission entirely agreed with the line I have taken.
LORD SHACKLETON: I am not sure whether this is part of the noble and learned Lord's confidential exchanges; but what I do not know is what line the noble and learned Lord has taken now. But I am glad that he has now received authority to reveal what I must admit I thought was likely to be the truth; because it was inconceivable to me, knowing the noble and learned Lord, that he would not have had discussions on this matter. I would ask him perhaps to reveal just a tiny bit more—though not now. Perhaps at one of these meetings that he has with it he will direct the attention of the Law Commision to this debate. It is conceivable that Sir Leslie Scarman, who is one of the most intelligent men I know, would be able to read the proceedings and to get the feel of the debate.
I suspect that there is a good deal of sympathy in the Committee for this idea

1013
and that perhaps at a later stage the noble and learned Lord may be in a position to give us some information. I doubt very much whether this is a matter that we should want to return to by further Amendment, except possibly to extract a little more information. It may be that on a later occasion the noble and learned Lord will receive another note at the last moment as "Stop Press" information on this matter. Unless the noble and learned Lord wishes to speak further I ask leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
6.8 p.m.
LORD BESWICK LORD BESWICK moved Amendment No. 39:
Page 3, line 36, at end insert—
("(4) Where, in regard to any determination of any of the Communities or their institutions or organs giving rise to rights or obligations within the meaning of subsections (1) or (3) of this section, the consent of the United Kingdom is withheld on the ground that a vital national interest of the United Kingdom is involved, the said determination, if still proceeded with, shall not apply to or take effect in the United Kingdom.")
The noble Lord said: I beg to move Amendment No. 39. I will not speak at great length as I think the Amendment explains the purpose quite clearly. I would if I may, read out the words of the Amendment. They are as follows:
"Where, in regard to any determination of any of the Communities or their institutions or organs giving rise to rights or obligations within the meaning of subsections (1) or (3) of this section, the consent of the United Kingdom is withheld on the ground that a vital national interest of the United Kingdom is involved, the said determination, if still proceeded with, shall not apply to or take effect in the United Kingdom."
That, I should have thought, was a reasonable purpose; and because I think it reasonable I have no doubt that the noble and learned Lord the Lord Chancellor will dismiss it as a fatuous Amendment. That is the reply which I get to those Amendments which seek to establish what most people feel ought to be established.
Something is said about a veto. It is said that it is possible, where a vital national interest is involved, for there to be a veto by one member of the Community of a directive or regulation or instruction. I am not sure that that doctrine of the veto has been absolutely
1014
established. I turn to the papers of the Commission's General Report dealing with the Luxembourg Agreement, in which this point was supposed to have been dealt with. I find that there it is stated:
"Where, in the case of decisions which may be taken by majority vote on a proposal of the Commission, very important interests of one or more partners are at stake, the members of the Council will endeavour, within a reasonable time, to reach solutions which can be adopted by all the members of the Council whilst respecting their mutual interests and those of the Community in accordance with Article 2 of the Treaty."
That would seem to be a fairly civilised way of going about the business.
But then there is a second paragraph which says:
"With regard to the foregoing paragraph the French delegation considers that where very important interests are at stake the discussion must be continued until unanimous agreement is reached."
Then there is a third paragraph which says:
"The six delegations note that there is a divergence of views on what shall be done in the event of failure to reach complete agreement."
That situation does not seem to me to be absolutely clear. I should have thought that a little clarity would be required. I suggest, therefore, that it would be reasonable, and in our interests, if we inserted the words which I now have pleasure in moving.
LORD GLADWYN: Whatever the noble and learned Lord who sits on the Woolsack may think, I should not myself consider this to be a fatuous Amendment. I think rather that it is an important and far-reaching Amendment; for it raises the whole question of the application in practice of the so-called Luxembourg Compromise, which was passed, as noble Lords are aware, or agreed to, at the beginning of 1966, and which effectively put an end to the original system of the Treaty of Rome whereby, at the end of the transitional period, all important decisions would be taken by a qualified majority vote in the Council of Ministers on the recommendation of the Commission. The so-called Luxembourg Compromise therefore effectively destroyed that provision of the Treaty of Rome and largely altered its entire significance. The formula itself

1015
has been read out in toto by the noble Lord, Lord Beswick, but I believe that somewhere else—I have not consulted the record—it is said that if any nation considers that its vital interests are affected by a decision to be taken under some kind of qualified majority vote it will have the right not to accept that decision in the circumstances.
I have always taken the view that though no doubt there would have had to be at the end of the transitional period some modification of the original provision for qualified majority voting—more especially given the Gaullist outlook on the Community generally—the effect of the so-called Compromise eventually agreed to at the end of 1966 was, if not fatal, at any rate very largely prejudicial to the good operation of the Community. At any rate, it made it much harder than it otherwise would have been to arrive at a reasonable decision of a compromise nature, even with regard to very important matters.
I do not want to detain the Committee more than a minute or two, but evidently there are now means whereby the full operation of the Luxembourg Compromise could with goodwill, be modified. For instance, it might be agreed—and this suggestion has been made by responsible people in France even, people connected with the Government—that though there should admittedly be unanimity in the Council on major political decisions introducing any new, great policy (a new agricultural policy, or for instance a social policy or a transport policy) once such a decision had been taken subsequent decisions taken within the lines of the major policy should by common consent be, in the last resort, taken by qualified vote.
There is another possibility that there should at least (and I should have thought that even the Government might agree to this at some stage) be an agreed definition of what are vital interests. It is rather deplorable that any Government, however small, can say that it objects to some decision which the great majority of its colleagues want to take because of regard for its "vital interest", without having to say what the vital interest was, and to get it recognised that it was a vital interest when most people might
1016
consider that it was not a vital interest at all. One would have thought, therefore, that there should be some effort to define "vital interest". Again, the suggestion has recently been made that, for progress, there should at least be a time-table whereby, when deadlock is reached and it is impossible to get agreement by unanimity, within a period of time, say a year or even two years, it will be recognised that a decision will have to be taken, if necessary, by some kind of qualified majority vote, and once that principle was adopted there would inevitably be agreement. All these are means whereby the full and, as I think, unfortunate effects of the Luxembourg Compromise might be modified in practice.
To return to the Amendment, as I see it, its effect, if it were accepted, would be, as it were, to fossilise the present situation as regards the deplorable Luxembourg formula and to make it much more difficult to modify it in future. I believe, and most of my colleagues in the European movement firmly believe, that unless this formula is somehow modified at least during the next year or two, a machine which works badly and very haltingly and slowly among the Six will become quite impossible to operate, if it means demanding unanimity in a Council of Ministers of no fewer than ten. Therefore, if only for the reason that I believe that this Amendment would tend in that direction, I hope that all convinced Europeans in the Committee will not hesitate to oppose it.
6.19 p.m.
THE LORD CHANCELLOR: This has been a very interesting discussion between the noble Lord, Lord Beswick, who takes one point of view, and the noble Lord, Lord Gladwyn, who takes a diametrically opposed point of view. The noble Lord, Lord Beswick, introduced this Amendment in a rather belligerent and aggressive manner. He does not ruffle my feelings. For many years I had to lead this House against the even more formidable opposition of the late Lord Alexander of Hillsborough, and those of us who were here then will remember that his little finger was thicker than the noble Lord's thigh. So I am completely unshaken by his onslaught, either in temperament or by intimidation.
The truth of this matter is that I think I must advise the Committee that neither

1017
noble Lord was quite right. The effect of this Amendment is to seek to embody in our domestic legal system in the pre-accession Statute what the noble Lord, Lord Beswick, considers to be the central provision of the Luxembourg Communiqué. The noble Lord, Lord Gladwyn, thinks this is highly undesirable. He does not like the central provision of the Luxembourg Communiqué and he has given his reasons for saying so. But the truth is that it would have not the slightest effect upon the central provision of the Luxembourg Communiqué because that is a matter between the members of the Community and it forms part of the conventions of the way in which the Community works. We cannot alter the way in which a community of Six works—still less a community of Ten of which we are not yet members—by putting something into our domestic legislation; so I will not characterise it by any of the epithets which the noble Lord, Lord Beswick, has suggested to me. But I would say that it would put us against the letter of the Community law, which is contained in Article 148 of the Rome Treaty as it will be amended by Article 14 of the Act of Accession. That is the letter of the law and, since this Amendment offends against it, it is unacceptable.
Having said that, I must again state what is the status quo about the Luxembourg Communiqué and what has been said about it by other members of our Administration. We are talking about the convention concerning the way in which the institutions of the Community work, and not about the letter of the law. It is important to understand what the status of the thing is before starting to talk about vetos or about trying to insert something into our pre-accession legislation. Of course this is not a veto in the sense that the Charter of the United Nations provides for certain countries to have an absolute veto with legal effect. Nor do the members of the Community. in discussing their affairs, stand eyeball-to-eyeball throwing vetos about like the United States and the Soviet Union in the United Nations Security Council.
The fact is that the Communiqué sets out, as of January, 1966, a practice which the members of the Community have adopted in preference to the letter of the law as laid down then in Article 148 of the Treaty. It also notes the view of the
1018
French Government, which was at any rate acquiesced in by the other members, at that date. It represents the state of affairs as it exists. It is, in fact, a description of how the Community operates in practice. The essence of Community practice has always been to recognise the vital national interests of member countries, because otherwise the work of the Community would be rendered impossible. That may be undesirable or not. This is a matter of Community policy which we will be entitled to discuss when we are members of the Community.
LORD GLADWYN: Would the noble and learned Lord agree that some effort should be made to define what a vital interest is?
THE LORD CHANCELLOR: I do not think this would be an appropriate Amendment on which to do that because it raises a very interesting subject. May I reply rather briefly—I hope the noble Lord will not think discourteously—to his point? The absence of definition and the practice which revolves around it very much correspond to the facts of life. If you try to force, by a voting decision of a member of a community of this character, a conclusion which one or more of the members regard as contrary to what they consider to be their vital national interest, whatever definition one chooses to give to the phrase "national interest", the facts of life are that the offended Powers can almost effectively bring things to a grinding halt. I will not go into details but this has been done. In a sense the Luxembourg Communiqué is the product of a traumatic experience of the facts of life. It is a description of the political facts of life which obtain in the present Community and which we think will obtain in the enlarged Community.
The fact of the matter is that the Community has never, in practice, overridden what a member State considers to be her vital national interest. We think that is likely to be the pattern in the future. Member States have never tried to invoke the strict letter of the law to enforce majority voting in cases where one of the members considers that a vital national interest is at stake. This state of affairs has always been clearly understood not only by the present members of the Community but by members of the previous

1019
Government as well as of the present Government. Despite the somewhat acute sensitivity of the Leader of the Opposition, I must remind the Committee, in connection with this Amendment, exactly what the right honourable gentleman the present Leader of the Opposition, when he was still Prime Minister, said about it on November 17, 1966.
LORD SHACKLETON: It is not just that I am sensitive; I am simply bored by the noble and learned Lord the Lord Chancellor always saying that.
THE LORD CHANCELLOR: The noble Lord cannot be more bored than I am sometimes by members of the Opposition, so we are succeeding in boring one another. But on this occasion I am addressing to the Committee what I conceive to be a considered reply to an Amendment put forward by the noble Lord, Lord Beswick, in not entirely complimentary terms. May I return to the remarks of the then Prime Minister about this practice on November 17, 1966. He said:
"In judging a Written Constitution, it is more important to examine the way in which it works and operates when it becomes a living Constitution—to examine the practices which have grown up under it and the manner in which those who have to operate it do operate it, to examine the common law, as it were, rather than the Statute law—than to be obsessed by perhaps literal interpretations of the original Constitution and its wording.
"As far as the Treaty of Rome is concerned, it is a question of convention and the way in which it has worked or looks like working, and this is of great importance for us.
"Four years ago, we had much less experience of these things and perhaps we could not—certainly not all of us—have foreseen that it would develop in this way.
"Then again of importance—and the right honourable Gentleman the Leader of the Opposition quite fairly referred to this—there was the Luxembourg compromise, which was reached earlier this year."
That was 1966. The then Prime Minister continued:
"That is highly relevant to any assessment of how the Constitution really works rather than, as I have said, basing oneself on the literal interpretation of the wording.
"The Luxembourg compromise is not part of the Treaty, but it is of the greatest importance to anyone who seeks to examine the way in which the Community, with or without Britain, is likely to operate in future."—[OFFICIAL REPORT, Commons, 17/11/66; col. 762.]
1020
That, with the exception of the analogy between common and Statute law, with which I do not wholly agree, corresponds very closely to what I am now trying to explain to the Committee.
I think it would be right to add what my right honourable friend the Prime Minister said about the same thing on May 25, 1971, after his meeting with President Pompidou. He said:
"Our position is that that should be maintained—that the Ministers should take the major decisions.
"I also agree with the President of France—and this is a view shared by many other European leaders—that no major interest of any nation should be over-ruled by the other members."—[OFFICIAL REPORT, Commons, 25/5/71, cols. 225–9.]
Therefore I submit, even at the expense of wearying the Leader of the Opposition so much, that this matter has been fully explained and fully understood in both Houses of Parliament for a number of years. I think it follows inescapably from what I have been seeking to lay before the Committee that this Amendment would put us in breach of the letter of the law of our obligations, is incapable of advancing our interests one step further, and is an attempt to embody in a rule of law that which is essentially an actual convention as to how things work. For those reasons, I should rather hope, despite the belligerent way in which he moved his Amendment, that the noble Lord, Lord Beswick, in a mood of sweet reasonableness to which he occasionally reverts, will not press this Amendment to a Division.
LORD BESWICK: I am grateful to the noble and learned Lord for the careful and full explanation he has given about the present position. As I understand it, what he is saying is that the present position is in accordance with what I sought to achieve in this Amendment. I must just add this. Those who saw the noble and learned Lord lose his temper last night, sit down in such an extraordinary way and use terms like "fatuous", will agree that what he has just said was couched in rather better terms.
THE LORD CHANCELLOR: Can I just borrow a phrase from the noble Lord the Leader of the Opposition? I was not angry; I was just bored.
LORD BESWICK: It is apparent that boredom expresses itself in somewhat different ways from different noble Lords. I should have thought that the boredom expressed by my noble friend is a little less offensive than the boredom expressed by the noble and learned Lord yesterday. I would say that if the noble and learned Lord is determined to substitute for his behaviour of last night "condescension" and "superciliousness", I wish him well. But would he please try not to be quite so studied in his application? I think it would be a little more effective. In the meantime, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.35 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 40:
Page 3, line 37, leave out subsection (4).
The noble Lord said: A short point of inquiry is raised by this Amendment and I think it is one which cannot conceivably generate any feeling. I do not know which Minister will be so kind as to answer, but I rather apprehend that it will be the noble Viscount, Lord Colville of Culross. We have had a good deal of reference to the effect of subsection (4), and I should like to put one or two questions with regard to it. We have already discussed—and I do not go back—the words with which it begins and ends with the word "Parliament "in line 40. What I should like to ask is: what is the meaning of the words,
"any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section"?
It is on those words that my first question arises.
We have in Clause 2, either by direct enactment or by making provision for the exercise of subordinate legislation, produced the result that the directly applicable Community legislation shall be part of our law. What the words which I have quoted from subsection (4) provide is this: that the foregoing provisions of this section shall govern any subsequent legislation. I want to know what is meant by the word "provisions". I should have thought—and I wonder if the noble Viscount can tell me—that what is intended is that not only the wording of Clause 2 is to govern subse-
1022
quent legislation but that what is really intended by Ministers is that the whole body of Community law embodied as part of our law, if I may use that phrase, would also govern the content of subsequent legislation.
May I give an example? Supposing an Article of the Rome Treaty says that black is to be white, and that Article, under Clause 2(1), is incorporated as part of our law. I should have thought that what is intended is that in subsequent legislation touching this general issue the word "black" is to be construed as "white". The word which is actually used is "provisions", which I should have thought might possibly be construed as applying only to the wording of Clause 2 and not to the Community legislation which is embodied in our own legislation. That is the first question that I wish to ask.
We have had raised in previous Amendments the important question as to how far we can repeal enactments dealing with Community rights and so on. The second question that I wish to ask is this. Supposing you have, say, in 1980, an enactment put upon our Statute Book which contains the word "black", we will in 1980 have to construe that as "white" if the Article to which I refer becomes part of our law. and if the word "provisions" is wide enough to include the directly applicable Community legislation. I think we are clear upon that. But I would also put to the noble Viscount—and I think he will probably agree with me—that we are not in point of fact by this language inhibiting the absolute right of Parliament, say, in 1985, to pass a further Act to say that 'black' is to mean black ' and not to mean 'white' even when we are dealing with Community legislation."Those are the points that I wish to raise. I think they are of some constitutional importance, and that is why I venture to trouble the Committee by taking a short time upon them.
VISCOUNT COLVILLE OF CULROSS: The noble and learned Lord has raised two fairly narrow points and I will attempt to explain them. This middle part of subsection (4) is really the provision which enables us to give the courts the power to construe legislation when they are dealing with cases, whether it is

1023
existing legislation which has been passed before this Bill or subsequent legislation passed after it, by reference to directly applicable law. They are to look to the Statutes as well as to the directly applicable law, and they are to attempt if they possibly can to construe the former in conformity with the latter. If a conflict arises—one would not expect that there would be conflict very often—if there is any way in which they can construe the domestic Statute so that it does not produce a meaning contrary to the directly applicable law, then that is the one under this authority that they will adopt. It is therefore essentially a rule of construction with which we are dealing.
The noble and learned Lord asked about "provisions". He is quite right in thinking that this means more than simply the words of subsection (1) of Clause 2. It is the essence and the implication of subsection (1) in Clause 2 that is here involved, because, although that is what enacts or brings in the directly applicable law, the provisions about which we are talking are the substance of the directly applicable law so brought into our domestic law by subsection (1). I think that is the answer to the noble and learned Lord's first point.
The second point is the possibility of a direct conflict in our Statute Law with directly applicable law as it occurs in an Act passed after this Bill; I think it would need to be after the directly applicable piece of Community law had been imported into this country as a result, say, of a regulation. This presupposes one of two situations. One must assume that Parliament knows what it is doing, and this is what a certain amount of debate has been about. The noble Lord, Lord Shackleton, has debated this with my noble friend at great length and we do not want to go into that again at this juncture.
But one assumes that Parliament knows what the directly applicable law is, and I suppose it might choose to pass an Act which directly conflicted with it. If it did that there would be a situation where we would be flying in the teeth of the obligations to the Communities. It would be symptomatic of something which had gone very severely wrong if Parliament did that and if it said: "Notwithstanding
1024
the fact that black is to be called white by virtue of the directly applicable law, nevertheless we say from now on in this country that it is to be black. "That would mean they were defying the Community and it would be a symptom of breakdown. I would doubt whether Parliament would do that. It is probably so hypothetical a situation that I do not think it would arise unless we get into a political situation where the whole thing was falling apart. If it did happen, in the end the British courts would have to say after that Act was passed, certainly according to the jurisprudence at the present moment in this country, that black means black.
A more possible—though, knowing the skill of our draftsmen, perhaps fairly improbable—situation would be where you do not have a conflict of that sort but one which has arisen more or less by mistake. This, I suppose, is possible because of the complexity of some of these things. This is one of the great advantages of this little passage in subsection (4). Here our example would be a case where the English courts would be not only exhorted—this is a matter of their own rules and interpretations where the Treaties are concerned, and they would attempt anyway to try to construe British legislation so as not to conflict with Treaty rights; that would be the general practice—but would have specific authority, in a British Statute relating to Community instruments, to try as hard as possible to see if they could avoid a situation which would produce a conflict. This is undoubtedly what they would try to do.
Again, the advice that has been given, I think here and certainly in another place, is that on the present rules of construction if there was really no way of assimilating the directly applicable law or the Community obligation, or whatever it might be, and the English Statute which had been subsequently passed, then I think that the courts under present rules would be bound to prefer the English Statute and to give effect to that. What I suspect would then happen would be that we should have to amend the British Statute, unless again we got to a situation where inadvertently we were in a state of breakdown. That, I think, is the explanation as to what would happen. I believe it accords with what the noble

1025
Lord himself thought and I hope therefore that it is a satisfactory answer to his question.
LORD BESWICK: I wonder whether the noble Viscount could tell me if what he has just said diminishes in any way the words of the Solicitor General during the debate in another place on July 5 at column 629? I quoted this passage yesterday, and asked the noble and learned Lord who sits on the Woolsack if he could square the quotation from the remarks of the Solicitor General with what the noble and learned Lord Chancellor said here. It will be remembered that the Solicitor General said—and it is largely what the noble Viscount said:
"If The Queen in Parliament were to make laws which were in conflict with this country's obligations under the Treaty of Rome, those laws, and not the conflicting provisions of the Treaty, would be given effect to as the domestic law of the United Kingdom."
The noble Viscount, after indicating the content of what his right honourable friend had said, went on to say, "I think the domestic law would obtain." He thought it would, but there was no doubt as far as the Solicitor General was concerned. I wonder therefore whether the noble Viscount would like to say whether he is now seeking to qualify in any way the assurance that was then given.
VISCOUNT COLVILLE OF CULROSS: No, I am not seeking to qualify it in any Way. I was attempting to express it in precisely the same way. Where a note of hesitancy may have crept into my speech it was because my right honourable friend said that all the most expert character can tell us at present is what the English or British courts would do at this particular moment. If they found themselves in a position of complete conflict, that would be the interpretation they would have to stick to. The only possibility—and this is something which has nothing to do with this Bill at all—is that rules of interpretation do change over time and the courts are capable of changing their own rules of interpretation. Therefore in many, many years' time I do not know that it would be necessarily true that precisely the same rules would apply. But there is no doubt about it at all.
LORD BESWICK: As there is no doubt about it I wonder whether the
1026
noble Viscount would agree that the words, as they now stand in Clause 2(4), are difficult to understand? The noble and learned Lord, the Lord Chancellor, in col. 1230 said at considerable length that the wording of Clause 2(4) was designed expressly to meet the situation which would arise if a subsequent domestic law went contrary to the Treaty law. He said that these words were designed to deal with that situation. The question which I put to myself in a lay kind of way is this: how can we provide for a situation in which a future Act is upset by an Act we are proposing to pass now? How can we provide for the future in an Act of Parliament? or, as Professor Wade put it in an article in The Times on April 10, 1972:
"The present Bill can and does make Community law prevail over existing Acts of Parliament. It also expressly attempts to make it prevail over future Acts by a few words in Clause 2(4) awkwardly wedged in the middle of a long sentence about other things."
There would seem to be a doubt in the minds of a number of people, and I would be very interested myself to hear what the noble and learned Lord, Lord Diplock, would say on this, because Clause 2(4) seems to be going contrary to what he himself has said.
VISCOUNT COLVILLE OF CULROSS: No, I do not think there is anything that need concern the noble Lord, Lord Beswick, in this. There is a prima facie rule in English law that if there is conflict between an earlier Act and a later Act whereby the two cannot be reconciled, then the later Act must be taken to have repealed or amended the earlier Act to the extent that is necessary to produce conformity. What we are doing here is to provide that, in the case of future Acts where there might be a possibility of conflict between their provisions and directly applicable law, there can be no doubt as to the construction the courts are to seek to put upon it. They are not to say that because the Act which causes the conflict appears to conflict with the directly applicable law, as imported through this Act, that they are therefore, come what may, to give precedence to the interpretation of the later Act. What we are telling them to do, if they possibly can, is to construe that later Act so that it does not conflict with the directly applicable law. It is only if they cannot do so that the law of the English courts

1027
allows them to give precedence to the later English Act.
LORD BESWICK: I can only say, and I say this simply because I am ignorant in these matters, that if I am now told that they are being instructed to construe these matters in order to make—
VISCOUNT COLVILLE OF CULROSS: Not "instructed; they are empowered.
LORD BESWICK: They are being empowered to construe a later Act so that it is in conformity with an apparently conflicting earlier Act. This is wholly reminiscent of the proceedings that we have recently seen in the National Industrial Relations Court and the interventions of the Official Solicitor. I had always understood that the purpose of having Acts of Parliament, and the purpose of having them discussed in the careful way we purport to discuss them here, is so that there is clarity, and not in order to give latitude to future judges to interpret them in one way or the other.
VISCOUNT COLVILLE OF CULROSS: I am sorry I have not explained this to the noble Lord and I apologise. This is a complicated matter and it is, inevitably, a legal matter. I cannot help putting this in legal phraseology and I apologise for doing so. I did not say that they were empowered to interpret a later Act so that it does not supersede an earlier Act if there is a direct conflict. I said that they are empowered to construe the later Act so that it does not conflict with directly applicable law unless there is absolutely no option in doing so. The directly applicable law gets into the performance through Clause 2(1) of this Bill. It is to avoid any apparent conflict between the later Act and Clause 2(1) that we empower them to construe, if they possibly can, so as to avoid the conflict. There is no attempt to set one Act against the other in the way the noble Lord has suggested. I hope that makes it clearer for him.
LORD STOW HILL: I am grateful to the noble Viscount. The answers he has given me are the answers I apprehended I should receive. May I refer to my Article 85? Article 85 of the Rome Treaty will become part of our law, and
1028
the noble Viscount has told us, as I thought he would and I am certain that it is his specific intention, that Article 85 should fall within the scope of the words, "foregoing provisions of this section". What slightly worried me was whether those words were appropriate to include Article 85. They could be read as referring literally to what had gone before in this clause. I know that that is not intended, and possibly the noble Viscount may agree with me that there is some room for doubt as to precisely what the word "provisions" in that context might be held to mean. I do not think it is worth while continuing the discussion on that point. There is a slight doubt, but the intention is perfectly plain.
With regard to subsequent legislation, as I understand the noble Lord—and again his answer was what I expected—let us suppose that this Bill becomes an Act in 1972 and there is a Community right, or an Article, incorporated which says, "black is to be construed as white". In 1980 an English Statute is passed which uses the word "black". The result of subsection (4) is that we shall have to construe "black" as meaning "white". That is what the noble Viscount was saying. The third step in the argument is this. I think the noble Viscount agrees with me that there is nothing to prevent our passing a Statute in 1980 saying that Section 2(4) of the European Communities Act 1972 shall cease to have effect, and thereafter we should have to construe in the Statutes the word "black" as meaning "black". I think the noble Viscount has told me that, and upon that assumption may I thank him warmly for what he has said in explanation?
LORD DIPLOCK: Perhaps we are making this matter more complicated than it is in practice. So far as existing legislation is concerned, I take it that the necessary amendments to existing legislation are comprised in Part II and Schedules 3 and 4 to the Act. I have not gone through them in detail. I have no doubt that Parliamentary Counsel have done their homework well. So far as subsequent legislation is concerned, I assume also, and with considerable confidence, that Parliamentary Counsel will do their homework well and in drafting future Acts of Parliament will do their best to avoid any conflict with directly

1029
applicable Community law, or, indeed, with anything that would conflict with a directive as to indirectly applicable law.
The problem therefore with which one may be confronted in practice—and this is the only problem so long as the Community survives—is that by accident, or oversight, Parliamentary Counsel may have failed to draft a particular section or provision in an Act in such a way as not to conflict with the directly applicable law. This is only likely to arise in practice where the words used by Counsel are not crystal clear—and there are a great many cases where there is ambiguity in an Act of Parliament and where there are two possible meanings. It is difficult to think of any section in an Act of Parliament in which one cannot say there is one meaning or another. This clause is designed to ensure that the courts, when they are construing that subsequent Act of Parliament, will recognise that it was the intention of Parliament not to conflict with the Community law. It is in those cases where there is an ambiguity—and there are many of those—that this is a rule of construction which is laid down and which the courts will observe, just as they observe rules of construction which are laid down in the Interpretation Act of 1889.
If on the other hand—and here I do not speak of course for the Government, but I express solely my own view—it were decided by Parliament to pass an Act of Parliament repealing or amending some directly applicable Community law, that would be a breach of our Treaty obligations. If it were on a serious matter it would no doubt he the end of the European Community so far as we were concerned. But the courts would be bound to give effect to a subsequent Act of Parliament under the law as it is administered in the courts to-day, and as it will continue to be administered, because this Bill does not alter that.
LORD BESWICK: Before my noble and learned friend withdraws his Amendment, it would be churlish of me not to thank the noble Viscount for the patience which he showed in explaining to me the meaning of this clause, and also for the courteous, gentle and clear way in which the noble and learned Lord, Lord Diplock, added to the information given.
1030
Although the noble and learned Lord, Lord Diplock, said that we were making this matter more complicated, as the result of what was said by the noble Viscount and the noble and learned Lord it is much clearer to me now than it was before.
LORD STOW HILL: I have already sincerely thanked the noble Viscount. May I now thank (and the noble and learned Lord sits on the Cross-Benches so I cannot call him my noble and learned friend) my noble and learned personal friend very much for his addition to what the noble Viscount told us. We have cleared it up now; the matter is quite plain. In those circumstances I would ask the Committee's permission to withdraw the Amendment.
Amendment, by leave, withdrawn.
EARL JELLICOE: This would probably be a convenient moment for the House to resume and for noble Lords to turn their attention to the Industry Bill. I understand it would be to the convenience of the House if we were to recommence the Committee stage of the European Communities Bill in an hour's time, provided the Industry Bill is dealt with by then. We should then resume at eight o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

INDUSTRY BILL
7.2 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Drumalbyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD DERWENT in the Chair.]
Clauses 1 to 8 agreed to.
Clause 9 [Industrial Development Advisory Board]:
On Question, Whether Clause 9 shall stand part of the Bill?
LORD ROBERTHALL: I feel I should first make an apology for not having mentioned on Second Reading that I had some doubts about this Clause. Unfortunately, I was prevented from being here in time to hear the opening speeches and I felt it would be discourteous to your Lordships' House to speak in a debate when I had not heard the beginning of it. Like other noble Lords who spoke then I welcome the Bill and wish it a speedy passage, but I have some misgivings about how it is going to operate. Those misgivings were not allayed by the Second Reading debate. I thought therefore that we ought to consider the matter a little further.
Part II of the Bill provides, in Clause 7, for financial assistance in assisted areas to help the employment situation, and in Clause 8 for assistance generally. Clause 8 is drawn very widely:
"to benefit the economy of the United Kingdom, or…in the national interest…"
It is therefore clear that the Secretary of State can do anything he thinks fit so long as he gets the consent of the company and does not actually acquire a controlling interest. I was in agreement with most of the speech of the noble Lord, Lord Boyle of Handsworth; he said that some powers of this kind are necessary in a mixed economy. I welcome the recognition by the Government that such powers are needed. To my mind the question is not whether there should be such powers but how best they should be exercised. In common with a number of speakers both in your Lordships' House and in another place I regret the loss of the I.R.C. as a chosen instrument for this purpose. Perhaps, as the noble Lord, Lord Boyle, said, it was politically necessary to move the exercise of these powers to the Department, but I think it was a retrograde step.
Selective assistance to industry is something which, by its very nature, must be discriminatory. It requires a judgment which is like a commercial judgment; that is, what is the best bet. That means willingness to take a risk, and a hope not of success in a particular case but that you will have more successes
1032
than failures. It is far from aiming at a record with no failures, especially where the price of that is no successes. In my experience, this kind of judgment is very different from the kind of judgment which civil servants so often have to make, where one failure can easily prejudice a man's career and where successes, if they benefit the career at all, will only do so indirectly. It is for this reason that it is desirable that there should be an insulating layer between Ministers and the taking of commercial or quasi-commercial decisions. That is the reason why Ministers do not have to defend in detail the regular decisions of the nationalised industries; the same purpose was served by the I.R.C. The I.R.C. is water under the bridge and the question is, how can we make the best of what we are getting?
I was very glad that the noble Lord, Lord Drumalbyn, reminded us that Mr. Tindale, who was the general manager of the I.C.F.C., is going to be the director of industrial development. I was also glad to read in recent advertisements, if I understood them aright, that the Department is advertising for a staff for the director and that the requirements for that staff are very like those for the staff of the I.R.C. I hope that the Secretary of State will make it clear to the director and his staff that he is prepared to defend them when he acts on their advice and comes under criticism. The criticism will undoubtedly be that if he is doing this for company A why does he not do it for company B and company C. That is the whole characteristic of the Parliamentary process. The only real answer is that he thought that company A was the best bet and that, as he read the Act, that was how he ought to exercise his judgment.
Where does the Advisory Board come in? It is an illusion to suppose that an Advisory Board is going to help him much. I thought the noble Viscount, Lord Simon, was too much concerned about being in a position to reply to detailed criticism and that both he and the noble Lord, Lord Tanlaw, who pressed for a wider range of qualifications for members of the Advisory Board, shared what I call the illusion that a big board with a lot of different people on it will improve the quality of the decisions which the Secretary of State has to make.

1033
The Advisory Board is almost certain to be made up of successful and busy men who are accustomed to delegating as much work as possible.
I do not think it is contemplated that they will have their own staff of industrial and commercial experts. In a number of cases, particularly I have often thought in Parliamentary Committees, it would be desirable for the committee to have its own staff, but I do not think that is contemplated here. So they will either have to accept the analysis of the director and his regional assistants or refer matters back for further inquiry. No doubt the Board may be able to give useful general advice, but in exercising powers of approval or rejection they will act much more like the board of an ordinary commercial company who lay down broad rules and then have to trust and back their staff to do the work and not try to do it for them. Few successful men have the qualities which will enable them both to keep dogs and to bark for them; and if they try to do this is part-time members of the Advisory Board I think so much the worse for all concerned. The point I am trying to make is that I regard this Board as a piece of window dressing, and not altogether a good piece. The dangers that I see in the whole process of selective assistance are not that they will make mistakes but that they will not have enough successes; and if the Board is too active it will only slow everything up and sow the seeds of doubt and uncertainty in the minds of the staff on whom in the end the Secretary of State is going to have to rely.
These doubts were much reinforced in my mind by the objections which the noble Lord, Lord Boyle of Handsworth, took to Clause 9(4) which gives the Board power to ventilate any differences of opinion that they may have with the Secretary of State in a statement before Parliament. I hope that this power will not have any effect, but if it does I am afraid it will be to make everybody concerned look over their shoulders all the time in order to keep the record straight, to see that they have an answer to everything that happens: that is to say, to slow up the whole process of selective assistance. But in a matter of this kind, in aid to industry, the timing of decisions is very important—an integral part, really,
1034
of the decisions. So I think on the whole it is a mistake to establish a statutory Advisory Board with statutory powers.
I certainly do not wish to delay the passage of this Bill and I do not want to press this matter to a Division, but I hope that the Secretary of State will consider very carefully the way in which he wishes to operate his new powers. We all hope that they will have a beneficial effect—and I am sure that he hopes that; that he is not regarding this machinery as just a device for putting things off. But in that case his objective must be that there should be as little delay as possible and that he should steel himself against criticism of particular decisions and aim to have a balance of more successes than failures.
7.13 p.m.
LORD DRUMALBYN: I am grateful to the noble Lord, Lord Roberthall, for raising this question which goes to the heart of the whole of the administration of Clause 8 and, to some extent, Clause 7. This particular clause was put into the Bill, as the noble Lord will probably be aware, owing to pressure in another place. I do not mean to say that the Advisory Board itself was born of pressure in another place—that, of course, was done in the White Paper. But the inclusion in the Bill itself is due to pressure in the Commons. I was sorry that the noble Lord was not present at the Second Reading. I am accustomed to his extreme courtesy but I do not think anyone would have resented it if, in spite of the fact that he was not here at the start, he had intervened.
LORD ROBERTHALL: May I say that I was here for most of it. It was the start that I missed.
LORD DRUMALBYN: In any event, we are happy to hear the noble Lord speak now and, in the light of his great experience of these matters, we take the most careful note of what he has said.
Any kind of mechanism of this sort is bound to have its dangers. The noble Lord suggests that the dangers here are dangers that there will be over-caution and that the need for obtaining advice will slow up the machine seriously. He will have noticed that the clause contains no detail of the circumstances in which the Secretary of State must refer matters

1035
to advisory boards. It is well also to remember that the advisory boards will exist at two levels. It is only at the national level that we have a statutory requirement for the appointment. But your Lordships will be aware that it is also intended that there should be regional industrial development advisory boards helping there. What is envisaged is that most of the matters arising in the regions will be dealt with in the regions and, where appropriate, will be referred to the advisory boards. It is not expected that the advisory boards will be advisory only on individual cases or even on individual industries. It will also be for them to express their view as to what needs to be done and to be able to suggest courses of study that need to be taken up so as to identify the kind of cases in industry as a whole, or in individual industries, where assistance might be beneficial.
I was glad that the noble Lord welcomed the appointment of Mr. Tindale. This gives a pointer to the kind of organisation we expect to have. There will of course be a Permanent Secretary at the top and Mr. Tindale will be working very closely together with him. There will also at national level be the development unit which will be looking at the kind of strategy we have to follow. But, once all that is done, I hope the noble Lord will agree with me that what we need is great knowledge of not only the market, not only individual industries, but also personalities.
We envisage a very much closer working between industry, on the one hand, and Government, on the other, than has emerged so far. One of the ways in which we expect to be able to have our tentacles out, so to speak, in this matter is through the use of these advisory boards. We believe that they will be of considerable use in reinforcing the judgments of the Regional Controller, who will have to prepare the case where there is an application and may not of himself be able to feel confidence in the viability of a company if it gets the aid. By obtaining the advice of the Advisory Board on this, it is very likely that a much better result will be achieved and that the money will be better used. I do not think it can be said that the use of
1036
the Local Employment Acts Financial Advisory Committee resulted in failures. There have been successes and failures as a result of that; and no doubt there will be successes and failures as a result of the machinery that we are establishing here. But I personally would attach great importance to this knowledge of the market and to the knowledge of people and, as I say, one of the main benefits of the Advisory Board will be to assist the industrial advisers—the industrial directors, as they are called—and also the regional controllers of the Department of Trade and Industry in sifting out those cases which are likely to give good results.
The noble Lord raised the question of subsection (4) and queried whether it was a good idea, where the opinion of the Board is over-ridden by whoever is taking the decision, whether it is the Regional Controller or the Department of Trade and Industry. Here I do not really agree with the noble Lord that this will lead to a great deal more caution. It seems to me that this is a necessary safeguard for the Secretary of State (and for the Advisory Board) when he comes to be criticised, and obviously he will have to stand up to criticism; on the one hand he can say, " I consulted the Advisory Board and they agreed with me ", or, on the other hand, he will be able to say that he differed from the Advisory Board, and he will be able to state his reasons where that is so. In any case I think this would be bound to arise. This is perhaps why we did not put down the provision in the first place, because we think that with the normal Parliamentary process of the challenging of decisions all along the line it is highly probable that this kind of situation would have arisen through the ordinary Parliamentary processes.
I do not think it would be right to expect that in every case where there was a different sort of opinion the Board would ask that their difference of opinion should be recorded. Matters of judgment on particular applications, for example, as to whether, on balance, this is worth supporting or, on balance, a grant or a loan should not be given, and so forth, I would not expect to be the subject of a Statement made before Parliament, unless of course it was of really major importance in terms of funds. But

1037
where, on the other hand, the clause is being used with a view to bringing in some scheme of assistance for a whole industry and there is a difference of opinion there, I should have thought that in the circumstances it was right for Parliament to be made aware that there was a difference of opinion. I do not think it really goes much further than that.
I hope I have said enough to allay at least some of the fears of the noble Lord, Lord Roberthall. Perhaps I might sum up what I was saying, that this structure of advisory boards at the top level and at lower level will give a very much wider spread than could possibly have been given by the Industrial Reorganisation Corporation, and it will get the benefit of people with a much wider range of experience to advise the Secretary of State, either locally or centrally. In the kind of rapid movement that we are experiencing just now, and the rapid economic changes that are going on, I think this kind of inter-penetration between Government and industry is important. In my view it would be well to give this structure a chance to work, and I hope it will prove successful.
7.24 p.m.
LORD DIAMOND: I intervene briefly only to make it clear to the noble Lord, Lord Drumalbyn, and to the Government that although the name of the noble Lord, Lord Roberthall, is alone attached to this Amendment, what: he has said has the full support of all of us on these Benches.
The noble Lord, Lord Roberthall, made it clear that he would have preferred something in the nature of the I.R.C.; it need not necessarily be a precise reproduction of the I.R.C. but something at some distance from the Government. That is the essential point, and what the noble Lord, Lord Drumalbyn, has said about inter-penetration as between industrial experience and the Civil Service is very wise and sensible but need not be affected at all by having a different kind of organisation—one which would be in a sense more free to rely on its own judgment, to stand on its own feet, and to make its own decisions within the general policy laid down by this Bill.
1038
Of course this machinery will result in fewer decisions to help industry than would otherwise be the case. Where an advisory board is consulted and the decision is a marginal one then that advisory board, like any solicitor, any counsel, any doctor, anybody who is asked for advice, will err on the side of caution. Everybody does, naturally, where it is a marginal matter. Where it is clear that you want to give advice one way or the other you give that advice; but where the arguments are equally balanced you will tend, as the adviser, to say, "I am not taking the action; I am giving the advice and therefore I must err on the side of caution". Therefore, without doubt there will be cases where help to industry within the policy of the Act would be given but for the advisory board. It is necessary to have somebody at some distance from the Government to use independent judgment. With the greatest respect, the only way that I have been able to work out how to achieve what the Government want to do, and what we wanted to do, and to avoid the liabilities of creditors and others which come from that kind of action, is to have somebody acting at arm's length from the Government, because they can do as a banker what the Government cannot do, namely, intervene without having attached obligations and commitments.
So there are several reasons why the I.R.C. type organisation would be a better one. The reasons why there is no I.R.C. (let us be frank about it) is because as soon as the present Government came into office they killed the I.R.C. and it is difficult for them to go back on that; and because, as they have made clear from time to time, the Government, and particularly Government supporters, did not like the way the I.R.C. intervened in the City. There was one particular occasion when the I.R.C. gave considerable offence in the way in which it intervened. Perfectly clearly that can be avoided. If that is what you do not want, being a Conservative Government—and you are entitled to your views as a Government—then you could have organised it in a way in which history would not have repeated itself. So I do not think the reasons given for not having an I.R.C. type of body are good enough and the reasons for having one,

1039
as the noble Lord, Lord Roberthall, explained, are very strong.
What can one do about that situation? Not very much, except to ask the Government to be good enough to watch carefully the way in which the implementation of this part of the new Act is carried out. Watch it carefully, knowing that there is a great deal of informed opinion—and there are few in your Lordships' House who would have greater information than the noble Lord, Lord Roberthall, drawing on his enormous experience in Government—and bearing in mind that there are many with informed views who really believe (not on political grounds at all, but in order to enable this Bill, when it becomes an Act, to work in a way in which the Government want it to work) that it would be better to do it at some slight distance from the Government instead of having it within the machinery of Government. Perhaps the noble Lord will be good enough to see that his Department watches this point with great care.
7.30 p.m.
LORD TANLAW: Without wishing to detain the Committee, I will take up briefly a few points raised by the noble Lord, Lord Roberthall. I appreciated his references to the contribution made by the noble Viscount, Lord Simon, and myself. I agreed with almost everything he said and his remarks represented a valuable contribution to the passage of the Bill, which has our full support. We on these Benches are pointing to the necessity for such boards to draw on all the specialist expertise that is available. This does not necessarily mean having a very large board. Boards of a very large size do not work in Government or commerce. For example, in Scotland when any money is applied for under the Bill for oil development we should ensure that there is an oil man on the board to direct matters. We support, at any rate in a lukewarm way, the Government's principle that an Advisory Board of this kind is a necessary counterbalance to the welter of advice that comes from Government Departments whenever taxpayers' money is at stake.
I like one element about this Advisory Board and that is the element of devolution which will occur under the Bill. The Government have at last recognised
1040
the need for devolution in development matters. These boards seem rather like a merchant bank with a board of directors, but which does not have power to distribute money. I feel that for regional development in the areas where it is most needed, we need not a Board but a Development Bank, and I hope that this Bill represents one step in the process of the Government's adopting this kind of thinking. The Government are now thinking in terms of devolution towards areas where assistance is necessary by giving more control and decision-making outside Government Departments. I welcome this. The next step for the Government may not be far off and it will certainly be in our manifesto for the next General Election. I hope that before then the Government will agree that a Development Bank is the necessary vehicle to give maximum stimulus to the points where growth is most needed.
LORD BOYLE OF HANDSWORTH: Anyone who was a Treasury Minister during the years when the noble Lord, Lord Roberthall, was economic adviser will understand what authors mean when they say in their prefaces that what is good in their books is due to the advice they received from some of their friends and that the faults are due entirely to themselves. Those of us who were fortunate to have the noble Lord as economic adviser will appreciate the force of that statement. The noble Lord, Lord Roberthall, has done a service tonight by reminding us that selective assistance cannot always be successful. Of its nature, some examples will succeed while others will fail. The important thing, as the noble Lord said, is that selective assistance should have a reasonable proportion of successes.
One aspect that always bothers me about our attitudes to Government today is the unspoken assumption that in all the important aspects of Government policy it is reasonable to expect 100 per cent. success. In fact, some of the most important aspects of Government policy are those where no Government can succeed for more than a proportion of the time. For reasons which some of us gave on Second Reading, I believe that a Bill of this kind is needed as a permanent feature of our mechanism for economic policy. However, we must bear in mind

1041
that Government selective assistance cannot be successful for more than a proportion of the time.
That brings me to the issue which the noble Lord, Lord Roberthall, has raised in his Amendment: the Advisory Board. I was greatly reassured to hear what the Minister said about the importance of inter-penetration between Government and industry. Here, more almost than anywhere else, is an example of what one witness to the Fulton Committee called the importance of "mutual involvement" between Government and the outside world. Far more Government Departments than we realise are mutually involved with the outside world in the pursuit of their policies. The reason why I regret the decision to make this a statutory board is simply that there are bound sometimes to be disagreements—sparks will be struck, as it were—between the Advisory Board and the director and the Development Unit within the D.T.I. But the more that this can happen without any statutory process being involved the better.
When I think of the number of times the partners in the education service have disagreed, and the outcome of that disagreement has proved fruitful, I feel certain that I am right. If there had to be an elaborate statutory process, a less valuable result would have occurred. For this reason I rather regret the decision to make the Board a statutory one. The Minister put his finger on the essential point when he said that the Board should essentially be concerned with rendering assistance. My plea is that assistance should always be preferred, wherever possible, to public confrontation. Of course there could be an extreme case, concerned perhaps with the redevelopment of some major industry, where it might be right for a Parliamentary statement to be made; but I hope that public confrontation between the Board and the Secretary of State's Department will be reduced to a minimum, because I cannot believe that advantage will often come from flaring headlines about the disagreements which are bound to occur from time to time.
I hope the Minister will agree that it would be particularly unhappy if the Board became, as it were, the watchdog not only of the C.B.I. but of Back Bench Members of Parliament. whereas the
1042
Development Unit and the director remained the principal source of advice to the Minister. That is the sort of confrontation between Parliament and the Executive which, as I said on Second Reading, would not be conducive either to speedy and effective decision-taking or to help for the regions. We must learn from experience and there must be mutual involvement between Government and industry. The greater the number of decisions that can be arrived at through discussion and argument, without headlines about disagreements, the better for those in the regions who most need assistance.
LORD ROBERTHALL: I need not detain the Committee for long. I am grateful to noble Lords who have spoken to the Amendment and for the kind remarks they have made about me. I particularly thank the noble Lord, Lord Boyle of Handsworth. In his closing remarks the noble Lord, Lord Diamond, put in a nutshell what is concerning us, which is that this is a difficult and tricky business, the implementation of which is worrying us all. The remarks of the noble Lord, Lord Drumalbyn, about the way in which he hoped the Advisory Board would work seemed admirable. I only hope that his prognostications prove correct. When he said that a very useful thing they could do was to give opinions about the character of people, I could not agree with him more because that is where the staff of the director are going to be in some difficulties. In that context I ought to say that the regional advisory boards are more likely to be really useful than the national one.
The other point is that I had noticed that Clause 9. subsection (4) referred to the request of the Secretary of State. I did not mention it because I thought it would be a hit blatant to suggest that he should not offer very many requests. I think the noble Lord went rather near in pointing this out to me. If the advice he seeks is rather general advice and not advice on particular matters that does go quite a long way towards meeting my points.
LORD DRUMALBYN: I welcome very much all that has been said. There is room for a difference of opinion here but I should like to thank the Opposition for the way they have accepted that difference

1043
of opinion and for their willingness to see how the matter works out. Certainly for our part we shall be watching this very closely. It is as well to remember that there are safeguards. There is the safeguard that projects exceeding £5 million can only proceed with the authorisation of Parliament. 'That is important. I take entirely the point of my noble friend, Lord Boyle of Handsworth, on the question of the relationships between the Board and the Secretary of State. Obviously this would have to be on a basis of confidentiality or it would not work at all.
If the Board felt so concerned about a decision of the Secretary of State, then at its request—and it is very important that it is only done at its request—a statement on the matter would be laid before Parliament. But if that were to happen often the whole system would break down. Of course this must be entirely an exceptional system and a last fall-back; it would probably occur not in a case of individual aid but as to how to treat a whole industry or sector of the economy, or possibly a whole region. Those are the sort of problems that would arise. I am grateful for the good wishes that this Bill has received and I hope that, supported by them, it really will work.
Clause 9 agreed to.
Clauses 10 to 19 agreed to.
Schedules agreed to.
House resumed: Bill reported without further Amendment; Report received.
Then, Standing Order No. 44 having been suspended (pursuant to Resolution):
LORD DRUMALBYN: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a.—(Lord Drumalbyn.)
7.45 p.m.
LORD HOY: My Lords, I regret having to detain your Lordships at this hour and on this particular Bill at this late stage, but your Lordships passed the first eight clauses in two minutes, which is rather more quickly than you are dealing with the European Communities Bill. I want to raise a point on Clause 3(2) which is much more mundane than the
1044
questions so ably discussed by noble Lords on the last Amendment. It is important to a particular industry.
After the Bill had been passed in another place one of my colleagues, Mr. Deakins, came to me and told me that the agricultural aspects of the Bill had been a little overlooked and that as a consequence slaughterhouses which were eligible for assistance would be left out. I found this a little surprising, but on Monday morning I received a letter from the National Farmers' Union and they have this great fear, too. They said that it might be dealt with in one of two ways: either under Clause 2 or under Clause 3(2). It would seem a great pity if this were in fact the case because this particular part of the agricultural industry has had a rather checkered career, and it was only at a very late stage that it was included for these benefits.
I understand that under Clause 3(2) it would be possible for the Minister to make an Order which would make slaughterhouses eligible as they have been up to this present time. This is extremely important for the industry and I do not hesitate to raise it even at this late stage. I have submitted the correspondence to the Minister and I am certain that he is only too anxious to get up and tell us all that he is going to meet the request of the National Farmers' Union and my noble friends from another place.
LORD DRUMALBYN: My Lords, I was grateful to the noble Lord for letting me see this correspondence and it may have made matters a great deal easier. I should just perhaps explain the background a little bit here. We are dealing with the position of slaughterhouses under the regional development grant scheme which is to be established under Part I of the Industry Bill. The wholesale slaughtering of animals for human consumption is classified in Order 23 of the Standard Industrial Classification while the regional development grant scheme, with relatively minor exceptions, is, as noble Lords are aware, confined to Orders 2 to 20. The classification of this activity—the wholesale slaughtering of animals—does present difficulty since in some respects slaughterhouses have characteristics of a manufacturing industry and in other respects the charac-

1045
teristics of a distribution industry. A complication is that sometimes the slaughtering of animals and the preparation of meat for retail sale are conducted on the same premises.
Under the Local Employment Act building grant scheme some slaughter-house projects qualified for grants but by no means all were able to satisfy the employment criteria and other requirements under that Act. The position at present, as far as regional development grants are concerned, is that representations on this matter have been made to the Minister for Industrial Development, who is consulting with agricultural Ministers. Clause 3 of the Industry Bill as drafted provides that the coverage of the regional development grant scheme may be extended by statutory instrument—I confirm that this is so—so there would be no difficulty in bringing this activity within the scope of the scheme if it was decided that it was appropriate to do so. With that explanation I hope the noble Lord will leave the matter at present, in view of the talks that are going on between the Minister for Industrial Development and the agricultural Ministers.
LORD HOY: My Lords, if I may be allowed to say so, I am grateful to the Minister for what he has said and I am prepared to leave the matter there.
On Question, Bill read 3a, and passed.
[The Sitting was suspended from 7.51 p.m. until 8 p.m.]

EUROPEAN COMMUNITIES BILL
8.0 p.m.
House again in Committee.
LORD SHACKLETON LORD SHACKLETON moved Amendment No. 43:
Page 3, line 41, after ("shall") insert ("unless the contrary appears").
The noble Lord said: I beg to move Amendment No. 43. It may help those of your Lordships who are not still having dinner if I explain the meaning of this Amendment, although I do not doubt that the Government Front Bench have already studied it with their customary care and have found perhaps some good reason, or bad reason, for not accepting my Amendment. The effect of the Amend-
1046
ment is to make clear that any future Act of Parliament shall prevail over any provisions in this Bill, or particularly in this clause, provided it is expressly clear that it is intended to do so.
We had a particularly helpful discussion just before we broke, in which the noble Viscount, Lord Colville of Culross, as my noble friend Lord Beswick said, took great trouble to explain the position of the law and its construction, and came to a view as to how it would, if this is the right term, "be operated" by the courts. His position was further strengthened by an admirable and authoritative intervention by the noble and learned Lord, Lord Diplock. I am bound to say that I wish it were possible in these difficult legal matters now and again to have that sort of authoritative intervention, because however skilled the Government Front Bench are, and however much we may trust noble Lords opposite, it does not carry quite the weight of an ex cathedra statement from the Cross-Benches. One of the advantages of having the Law Lords in this House is that they are able—all too infrequently, alas!—to give us advice.
Notwithstanding what we have been told by the noble and learned Lord, Lord Diplock, and the noble Viscount, Lord Colville of Culross, the fact remains that until this matter is tested in the courts an uncertainty will remain. My noble friend Lord Beswick has quoted Professor Wade and others, and our concern was increased by the speech of the noble and learned Lord, the Lord Chancellor, on Second Reading. It is quite likely that I shall not be interpreting him absolutely fairly, although I will try to do so, because this is a difficult matter for a layman. He said:
"It is to meet this difficulty that Clause 2(4) has been inserted as an express provision in the Bill in so far as it provides that obligations arising under Clause 2(1) (Community obligations) have precedence over subsequent enactments."—[OFFiciAL REPORT, 25/7/72, col. 1230.]
It is perhaps difficult to interpret the noble and learned Lord, the Lord Chancellor, simply by relying on that one sentence, because he went on to indicate that he was referring to a matter of construction. This was the point with which the noble Viscount, Lord Colville of Culross, dealt at some length. It appeared that the noble and learned Lord was

1047
saying that subsequent enactments would take precedence—
THE LORD CHANCELLOR: That the Community law would take precedence.
LORD SHACKLETON:—that the Community law would take precedence over subsequent enactments, and this has caused us a good deal of concern. If I understand the noble Viscount and the noble and learned Lord, Lord Diplock, it is likely that a subsequent Act of Parliament, if it said something quite clearly in conflict with one of the Community obligations (say one of the directly applicable ones) and had been duly passed, would in fact not be subordinate to that earlier obligation. Talking in practical terms, as the noble and learned Lord, Lord Diplock, said, it is assumed that Parliament will not pass such laws except possibly inadvertently, or because the Parliamentary draftsmen had got it wrong, unless in fact it deliberately decided that it was going to undertake something which would be in breach of the Treaty, with all the consequences that would flow from that.
I hope that so far I am correct in the way that I have propounded this situation. None the less, doubts do remain. This is a crucial issue, because the statement of the noble and learned Lord on the Woolsack—possibly taken out of context—does not apply just to the question of construction, but suggests that a Community obligation already entered into has precedence over subsequent enactments. I am looking at this matter perhaps with a layman's eyes, but this would seem to me to run counter to the views we have been hearing to-day, Therefore, in order to make the position abundantly clear, we have tabled an Amendment which again, like such Amendments, may be defective, but which to me, as a layman, and indeed to those of my legal friends who have advised me on this subject, seems to make it perfectly clear that any enactment which is subsequently passed and which clearly shows that it overrides a Community obligation shall prevail. Therefore the subsection would read:
"…any enactment passed or to be passed…shall unless the contrary appears be construed and have effect subject to the foregoing provisions of this section ".
1048
That means that the enactment clearly appears to run counter, and that Parliament in fact intended it to run counter.
When I first studied this Amendment I thought—as I said, I was misled in my ignorance by the statement which I quoted of the noble and learned Lord—bearing in mind always the sovereignty of Parliament, that any subsequent Act might have to disavow deliberately the provisions of Clause 2 in order to take precedence over Community obligations. It seemed to be undesirable that Parliament should always have to provide for that. Let me say that I accept that such a step may be exceptional and that I fully acknowledge the political implications, but the insertion of the words "unless the contrary appears" seems to me, and to those who have advised me, to make crystal clear the supremacy of Parliament in this matter if it deliberately wills something. If it is clear that the contrary appears and that it is not merely a matter of arguing over construction, then Parliament will still remain able to legislate as it will. As I understand it, the position—and the position which we all seek—is that Parliament should retain this supremacy, because it is in accordance with our traditions. Also it is part of the whole basis of the Constitution that one Government cannot bind another, although what I have quoted from the earlier speech suggests that in fact this Bill has a binding effect of that kind.
In the Blackburn case to which reference has been made, the noble and learned Lord, Lord Denning, ended up, when speaking on this question of legal sovereignty and after quoting Professor Wade who said that sovereignty is a political fact for which no purely legal authority can be constituted, by saying:
"That is true. We must wait to see what happens before we pronounce on sovereignty in the Common Market."
I fully acknowledge, for reasons which in my opinion are perfectly apparent, that it was not at that moment for the Court to express an opinion and they gave their reasons why they should not do so at that moment. None the less, the statement that
"We must wait to see what happens before we pronounce on sovereignty in the Common Market ",
although an impeccable statement and correct in every way, also contributes to

1049
the anxieties with regard to the supremacy of Parliament.
I suggest that the insertion of the words "unless the contrary appears" will make clear what I understand the Government have to some extent been saying, with a less certain voice than that of the noble and learned Lord, Lord Diplock. It may well be that the noble Viscount did not wish to express himself, because he did not want to anticipate what the courts might say in certain circumstances. But there has been a touch of doubt and—again, we may have misunderstood the noble and learned Lord the Lord Chancellor—a lack of absolute certainty that Parliament retains its supremacy and that if, for any reason, it deliberately passes a subsequent Bill which runs counter to our obligations under this Bill and under the Treaties into which we have entered, Parliament's will will prevail. Whether it should is an entirely different matter, and the consequence may be that we shall be in breach of a Treaty.
It is not inconceivable in certain circumstances that, through no fault of their own, countries may be in breach of Treaties. After all, most wars arise—and I am not foreseeing a war—because of a breach of a Treaty. There might be political developments of a kind which would mean that we should find ourselves in breach of a Treaty. None of us would wish to legislate on the basis that we should provide for such a possible breach, and that in entering Europe, for good or for ill, we do not enter with a full acceptance of the Treaty of Rome. Many of my noble friends do not like it, but I am sure they will accept, once we are in, that we have a binding Treaty. But circumstances could arise in which we wished to do something other than was provided for, either in the Treaties or, more especially, in some directly applicable regulations. Some figures were given by the noble Earl, Lord Lauderdale—and I voted for his Amendment—about the breaches which have already been committed by other countries. I do not know whether in certain circumstances, if there were a serious breach of obligations—and the Court of Luxembourg has no real powers of enforcement—we could be taken to the Hague Court. Presumably we could, and there are a number of external sanctions which could be applied, even if in
1050
fact they were not. I am not sure whether we can be taken to the Hague Court because, as I understand it, one must be willing to submit to its jurisdiction. But that is a matter into which perhaps I should not go further.
This is a simple Amendment which, if it is drafted satisfactorily, makes the future position clear. Any fresh enactment which Parliament may pass will be effective—and will be effective in the courts—provided that its intention is clear and that it is not just a question of trying to assimilate different constructions. I shall listen with interest to the answers which we shall receive, but I believe this to be quite fundamental to the position which I hope we, as a Parliament, are taking up. I beg to move.
THE LORD CHANCELLOR: I am afraid that I cannot have made myself very clear last night on an Amendment which, in some ways, had a very similar effect. But to some extent, at any rate, unless I am mistaken, my task has been rendered much more easy by the noble and learned Lord, Lord Diplock, in a speech of which I am afraid I heard only the concluding paragraphs just before the House resumed to take the Industry Bill. As I understand it, the noble and learned Lord was really saying this—and this is what I was trying to say last night. There is a doctrine in our Constitution by which Parliament is supreme. In the sense that it can always repeal existing legislation, it can expressly amend existing legislation; and if it does so the courts will give effect to the repeal (and they must give effect to the repeal however extraordinary or bizarre the result) and they must give effect to the amendment. What I have been trying to say—and I said it in this Parliament first in respect of the Bill of Rights of the noble Earl, Lord Arran; I said it on both occasions when we discussed this Bill and I said it last night, I thought absolutely plainly, and I quoted the Solicitor General to the same effect—is that this is a fundamental doctrine of our Constitution, as clearly fundamental to the whole of it as any term of a written constitution elsewhere.
As I understand it, what the noble and learned Lord, Lord Diplock, was saying was this—and it was exactly what I was trying to say and as we have always said—that if Parliament purported to amend

1051
the subsection that we are now discussing (subsection (4) of Clause 2 of the Bill or of the Act, as it will be) or to repeal it, the courts would have to give effect to the express Amendment or repeal. If it were a minor matter it would cause us international difficulties, it would be a breach of our international obligations; if it were a major matter it would, in effect, terminate our membership of the Common Market, because we cannot amend this subsection without acting flagrantly in defiance of the obligations of the Common Market. None the less, the courts, if that were to happen, would be bound to give effect to our breach of obligation, because that is the position they hold in relation to Parliament and the Constitution.
But side by side with that are two other factors of which the more important for this purpose is that we are under an obligation, when we enter the Community, to ensure that directly applicable law prevails over our ordinary law. This subsection, unamended, is designed to give effect to that Community obligation so far as, under our Constitution, it is logically possible to do so. What the Amendment would in effect do would be precisely to contemplate that Acts of Parliament could be passed while this subsection was on the Statute Book which defied our Community obligations; in other words, if this Amendment were passed we could not accede to the Treaty. That is the vice of it, and that is why I asked the noble Lord not to pursue the matter to a Division. Obviously, if we took this subsection off the Statute Book by repealing it, the consequences contemplated by the noble and learned Lord would follow. But one thing we cannot do, either honourably or legally, is to insert in our Accession Treaty something which is inconsistent with our obligations when we accede. This is what the Amendment would do. I have tried to explain the matter lucidly. It is for this reason that we say that, far from clarifying the matter, the Amendment will throw the whole concept of adherence to the Community into the melting pot.
THE EARL OF ONSLOW: Could my noble and learned friend explain something to me? In the event of our breaching the Treaty in such a way as the French and Germans have done over
1052
currency regulations and so on, or in the way that had we been in the Common Market we should have done by floating the pound, could the courts then force Her Majesty's Government's Ministers to change their minds?
THE LORD CHANCELLOR: That is not a question which arises under this Amendment. Nor could I give a positive answer to each one of the subordinate questions that my noble friend has put. Obviously, if we break our obligations under the Treaty the Treaty itself provides machinery by way of decisions of Community institutions whereby we should be ordered to remedy the breach. Before one lost one's membership at any rate, one would be in the face of a series of orders, either by the Commission or by the Luxembourg Court or the Council of Ministers, to remedy the breach. If we refused to do so, then sooner or later, if we went on refusing over enough subjects, obviously our membership of the Community would be in question. What the situation is about the French and the Germans I am certainly not prepared to say without notice—and probably not even with notice. But that is what could happen to us.
Membership of the Community involves acceptance, among other things, of the two arms of Community law which we have been discussing throughout most of to-day: first, the acceptance into our system of directly applicable law; and, secondly, the acceptance of an obligation to enact the indirectly applicable law by our own domestic legislation. You cannot remain a member of the club indefinitely if you disregard its obligations. Just how many obligations you must disregard before you lose your membership is largely a question for the members.
So far as this Amendment is concerned, the point I am trying to make is a logical one. It would be impossible to devise an Act of Parliament (and this is both the beauty and the limitation of our Constitution), at any rate an Act of Parliament of this kind, which destroyed the sovereignty of Parliament, because theoretically the Act which destroyed it could always subsequently be repealed or amended by a subsequent Parliament. That doctrine remains absolutely unaffected by anything in the Act.

1053
Equally, it is our unqualified obligation to provide, so far as we can, both that directly applicable law shall be directly applicable and that where conflict arises between our domestic system and the directly applicable law the Community law shall prevail. That we have done in this subsection. What we cannot do in this subsection, not only because it would be dishonourable but because it would be impossible, would be to provide consistently with our joining the Community that we had a means of escape so long as this subsection remained on the Statute Book. And that is what I conceive this Amendment to do.
LORD SHACKLETON: I do not find it easy in a matter in which I am so inexpert to see what difficulty there can be in providing (in an admittedly difficult clause) to meet the situation envisaged by us and the situation envisaged in the speeches of the noble Viscount, Lord Colville of Culross, and the noble and learned Lord, Lord Diplock. It may be that I have misunderstood them. If I may say so to the noble and learned Lord on the Woolsack, I do not think it is a question of honour. I fully accept what he says: that you cannot sign a Treaty, and ratify and implement it, with the intention of breaking it. The example that the noble Earl, Lord Onslow, gave us was of circumstances in which, rightly or wrongly, we could be in breach of the Treaty (in the same way as a number of the countries of the Community were themselves in breach of the Treaty) and where we should be prevented under this law from taking such action as a Government supported by Parliament may be forced to take.
I want to choose my words very carefully. I am not advocating breaching a Treaty; I am looking at the practical circumstances that might confront a future Government. It is clear (and I repeat it) that if we go in, as we look like going in, we should go in wholeheartedly and we must accept the consequences until such time as, for some reason or another, we amend or repeal this Act and possibly find ourselves in breach of the Treaty. I think that that is an unlikely event, but, none the less, certain circumstances could arise. I cannot see why it should be impossible for us honestly to put into the Bill the words, "unless the contrary appears"—
1054
if it is satisfactory in its drafting—which only states what I conceive to be the precise position, and only states what we know to be the position, anyway. It may be that I could be persuaded otherwise, but I have put this Amendment forward because I think it would, in any case, be a dishonourable act to appear to deceive our future partners and not to state explicitly in the relevant Parliamentary instrument what we maintain to be the Parliamentary position anyway.
It may be argued that it is superfluous to do so, but I do not think that it is dishonourable to do so. I would still urge that this is something that helps to clarify the position. Before we finally leave this perhaps I could ask the help of the noble and learned Lord about whether I am right in the construction that I am putting on what I say is the effect of, "unless the contrary appears ". It may well be that the Amendment is in some way defective; I do not know. If it achieves what I seek to achieve I shall still need a bit of convincing that it is a mistake to make the position clear in this way. But I should like to know whether it achieves that purpose, as I would not wish to take this Amendment any further if it were defective.
8.32 p.m.
LORD SHINWELL: I rise to seek clarification. On several occasions in our debates the noble and learned Lord the Lord Chancellor has made the assertion—and I think when I state it I shall be within the recollection of the Committee—that we go into the Common Market, having accepted the Treaty of Accession and all the obligations associated with our entry. We are expected to obey the rules and accept all the obligations and the, rights et cetera. We are expected to obey them, and I accept that. So far, so good. But having said that, the noble and learned Lord the Lord Chancellor, again in repetition, has asserted that Parliament, your Lordships' House and the other place, at any rate to some extent retain control; in other words, there is political control.
I am bound to say that I cannot reconcile the irreconcilable. If we are to accept all the implications there is no redress if something inimical to the national interest, that is our interest, occurs. It is impossible for me to specify

1055
what that would be. Perhaps when we discuss the next Amendment it would be possible to specify one aspect that occurs to me, but I cannot do that on this Amendment. But if something inimical occurs which, in the opinion of your Lordships' House—if not in the opinion of the Government—and in the opinion of the other place—and again not in the opinion of the Government—is inimical to the national interest, where do we exercise the measure of Parliamentary control? Where is the redress? I cannot see it. Perhaps the noble and learned Lord the Lord Chancellor will explain it.
8.35 p.m.
THE LORD CHANCELLOR: If I may, I would rather address myself directly to the question which the noble Lord the Leader of the Opposition asked. I apologise to the noble Lord if I have failed to make myself plain, precisely because I doubt whether I can make myself plainer. I have done my best and it seems that I have failed. I thought that the noble and learned Lord on the Cross-Benches was doing it before the House resumed at seven o'clock, but evidently he has failed. If I may put it in a sentence, we are under an obligation by this pre-accession Statute to put our law, so far as it is logically possible to do it, in a position where directly applicable Community law prevails over ordinary law. The clause as unamended does that thing; that is to say, it makes this rule apply in so far as it is logically possible for a British Parliament to do that. But the clause, as amended, would not achieve that purpose because it directly contemplates that, with that clause still on the Statute Book and unamended, we could do something different.
It remains true, it has always been true and is what I have always said, that because of the rules to which the noble and learned Lord. Lord Gardiner, referred in May, 1967, and to which the noble and learned Lord, Lord Diplock, referred just before seven o'clock this evening and to which I have referred—as I think the noble Lord. Lord Shinwell, justly said, repetitiously almost, because I must now have said it very many times during the course of these proceedings—it is not possible to do it absolutely
1056
because Parliament remains supreme. If we were to put in this Amendment we could not accede to the Treaty. We can accede to it without the Amendment. What is more, there is nothing either dishonourable or obscure in our doing so because however benighted our European partners may be, they have had an adequate instruction into the peculiarities of our Constitution which puts us in this position. We cannot prevent a subsequent Parliament repealing or amending this clause, but we can enact it in a form which complies with our Community obligations. That we can do only if it is not amended.
LORD SHACKLETON: I must accept what the noble and learned Lord has said. The purpose of this Amendment was specific and limited, and I am sure the noble and learned Lord accepts that. It was not intended to make accession impossible, though no doubt there are Amendments one could move deliberately to do that. That was certainly not my intention. If one were going to do it, one should do it explicitly and not by a piece of drafting designed to achieve a different purpose. The noble and learned Lord has stated categorically that if this additional phrase were inserted into this clause it would make it impossible for us to accede to the European Community. I should like to study very carefully what he has had to say. These points and similar points will come up on later Amendments, particularly one that my noble and learned friend Lord Stow Hill proposes to move, and we shall want to explore this matter further.
I fully accept that the noble and learned Lord has been expressing himself with firmness and clarity and I did understand what he was saying. The particular point I was asking about was whether this Amendment was effective. I gather from what he has said that it is so effective that it would make accession impossible. As I say, there may be those who would welcome that and I may regret that I am not prepared to go that far. anyway not to-day. But I am still unhappy about the position where there is a breach by other countries and where, although it would be contrary to our Treaty obligations, we found ourselves in a situation such as the noble Earl, Lord Onslow, has mentioned, where we found others breaching the Treaty.

1057
I believe—perhaps this sounds unduly Chauvinistic—that the British are sometimes at a disadvantage in that, on the whole, we seek to honour our obligations. In this matter this Bill could put us at a disadvantage. Having consulted my noble friends I am rather inclined not to take this Amendment to a Division, but I think I shall have to let the Committee negative it in case any noble Lord wishes to vote.
On Question, Amendment negatived.
8.41 p.m.
On Question. Whether Clause 2 shall stand part of the Bill?
LORD BESWICK: It would be wrong to allow this clause to go through without some general comment. No matter how the words of the clause are dressed up, re-arranged, explained or excused, the fact is that the clause will remove the initiative and the execution of lawmaking to authorities outside the United Kingdom. That is its net effect and no one can disguise that fact. It seems to me that the tragedy of this operation is that it is taking place at a time when Her Majesty's Government are appealing outside for respect for the law. They ask that the law of the land be obeyed. But this clause and the way in which its provisions will be implemented is a recipe for lawlessness. Quite literally that is so. The noble Earl, Lord Lauderdale, claimed that one-quarter of the regulations issued from Brussels were not now observed by current member-States. I do not have in mind so much the breaking of Community laws by member-States; I think the danger is greater even than that. The real danger is that respect for law among the general mass of the people will be lessened.
Some of us have spent a lifetime in a social democratic Party and we have always argued that the remedy for economic injustice is the capture of political power. We have always preached and argued that the people of the country should have trust in the powers and authority of this Parliament. If we could get control here, then we could remedy the economic injustices from which many of the people suffered and still suffer. But that trust has diminished and is diminishing, and it ought not to diminish any further. As I have said, this Bill is a
1058
recipe for lessening the respect which people outside have for Parliament. We have tried to write into this clause certain safeguards which might lead to retention of that trust and stop that diminishing process, but each and every one of them has been thrown out. In no case has there been any real attempt to put heads together to see whether we could meet the fears which undoubtedly exist and to move towards an improved form of words. The most constructive discussion was on subsection (4) of this clause, but of course that was not an Amendment which would have been an improvement. So we shall have this situation in which decision-making about important day-to-day matters—the price of our bread and butter, the value of our money, the location of our industry, the movement of capital—will move further away from the persons affected.
We are sometimes accused of being old-fashioned when we put up arguments against this Community concept. We are told that modern thought and practice are towards a wider unit, but the truth is that the really up-to-date, modern thought and hope are for closer participation, more involvement, bringing decision-making closer to the persons actually affected. The whole of that process will be reversed by the legislation we are now passing, and particularly by Clause 2. Noble and learned Lords opposite have argued with the utmost confidence that this Bill, and in particular this clause, need not be improved in any way. They may have convinced themselves, but my really deep belief remains that they have not convinced the majority of the people of our nation. They must not be surprised if outside this place disapproval will be shown not in Division Lobbies but in the ways which are open to the people. It is the Bernie Steers of this country who will benefit from the passing of this clause. We are really giving to them arguments which will be dangerous in their mouths. I should like to see, even at this late hour, some attempt to assure our people that we can promise that Parliament's control and genuine sovereignty will remain, and that we really will be in a position to try to put right the economic ills of our own country. As this clause now stands, it will not be possible to give that assurance.
8.47 p.m.
LORD SHINWELL: There are several reasons for being a participant in debates when legislation comes before your Lordships' House and on previous occasions when legislation has come before another place. One is that if one holds strong convictions about the desirability of promoting a particular piece of legislation one should support it wholeheartedly. The other is that if one detects defects in the proposed legislation one should oppose it outright and in a forthright fashion or—speaking as an old Parliamentary hand—by indulging in criticism even if that criticism is sometimes described as trivial and niggling.
I will speak briefly, but I thought I ought to speak as I feel strongly about this matter. I find myself in a rather different position from that of many of my noble friends. During the course of debates I have declared that I am an unrepentant opponent of entry into the Common Market. I need not go into the reasons now; these matters have been discussed during the Second Reading debate and so far during the Committee stage. When it comes to the Third Reading and we can talk about what is in the legislation perhaps it will be possible to add to what I have already said. Being something of a logician, if nothing else, I accept that if we decide to enter the Common Market we must do so fully, exclusively and wholeheartedly. It can be no other way. That has been my position since the outset of our debates—indeed from the time when the first pronouncement was made in another place. If we join the club we must be a member of it. One cannot join a club and immediately proceed to indulge in breaches of the rules. That would be not only improper but undesirable, and in a sense it would be an act of treachery. You either go in with the intention of promoting beneficially every aspect of life associated with the club, or in this instance the Community, or you stay out. That has been my position all along. I may well be asked: then why indulge in criticism? It is because there is this other reason for taking part in a debate. Even if one is unable, having pressed one's point of view, to obtain a favourable response one must justify one's existence, so to speak. One cannot come to your Lordships' House and remain silent
1060
throughout the whole of these debates and not express an opinion just because one has expressed one's position of being entirely opposed to entry. Of course, it might be thought: why do anything more? One has to recognise one's responsibility as a Member of your Lordships' House; one is bound to take part in debate and, if one detects defects here and there to seek to expose them. That has been my position.
But there is something more, and it is all I will say on this occasion. In this connection I will not use the word "improper"; it would not be relevant to the Parliamentary situation because all kinds of statements are made in the course of debates. That has been going on for a long time, and no doubt we shall have further evidence of it in the future, not only in your Lordships' House but in the other place. But, after all, although it is the duty of a Government to promote their legislation and carry it through with all the influence and power that they command, on the other hand it is the duty of an Opposition to oppose if they detect defects in the proposed legislation.
There is another aspect. It is also the duty of a Government, of whatever political complexion, to appreciate the existence of an Opposition. It is part of our Parliamentary procedure, of what is called the Constitution. And here, if I may digress for a moment, there is no great authority on these matters. I have occasionally read documents, taken part in discussions and entered into conversation, sometimes with legal pundits, but at any rate with people of Parliamentary experience over many years, and it seems to me that if the Government stand firm, unyielding—I use this expression and hope it will not be regarded as offensive; are perverse, which is much worse than being stubborn and obstinate—and will not give way an inch it can do greater injury to our Parliamentary institutions than, if I may say so, even the hullabaloo that goes on in another place—I hope this will not be regarded as a breach of privilege—to which reference has been made in the Press.
There was a Sunday newspaper (I am not going to furnish it with a gratuitous advertisement) which came to the conclusion that Parliament was on the way out. It happens sometimes not only with

1061
the Press but with people and personalities, important and unimportant, that if they do not get their own way they say, We have reached the end of the road." This Sunday newspaper expressed the view: "Parliament is almost dead. It ought to disappear." What is to take its place they are unable to say, unless perhaps they conceive the extraordinary notion that the editor of that newspaper could run the show. That is not a fantastic idea. In the past we have had newspaper proprietors who thought they could run the show, and if they had not been held in check they would have run the show. However, I do not want to delve too much into political history. That is the position.
My complaint is not that the Government are standing firm—they want to push this legislation through; they believe that this is the only thing that will help the country, although I take a different view—but that they must recognise that the Opposition have rights. They have refused, if I may say so—I was about to use the familiar expression "with respect", but I will not do that because it may be regarded as humbug—even to recognise the existence of an Opposition. Yet over and over again in the course of the debates in the other place it was said—and this has appeared in the Press on several occasions, even in the reputable quality papers—that it was possible in your Lordships' House to improve the Bill.
I do not suggest that I have been constructive. If I said that I have been constructive it would be sheer hypocrisy. I have not attempted to be constructive in the course of this Bill. If your Lordships like, I have tried to be destructive. I have not been very effective. There have been occasions when I have been much more effective in the sphere of destruction than I have in the debates in your Lordships' House. But my noble friends have been constructive. My noble friend Lord Shackleton, the Leader of the Opposition, has been particularly constructive. He is a pro-Common Marketeer. He is entitled to his convictions, and I appreciate his sincerity and integrity. He has been propounding ideas which he thinks should be embodied in this legislation and which are intended to be constructive. What has happened?
1062
If I may use a vulgar expression, he has simply got the brush-off. He has been pleading much more effectively than I can plead but he has got the brush-off. As for my noble friend Lord Beswick, who has made some excellent speeches in our debates, he has been the object of cynicism on the part of the noble and learned Lord the Lord Chancellor. I have detected that.
This is not the way to run Parliament. Nor does it—and with these words I conclude—envisage hope for the future of our country and our Parliamentary institutions. It is never too late to mend. Perhaps before the conclusion of our debates it might be possible for those on the Government Benches to detect the wholesome effort, the honest effort, on the part of some of my noble friends to improve the Bill; at any rate not to reject some of the Amendments in an outright fashion but to give consideration to some of the ideas that have been adduced, in the hope that on the Report stage they will come to a different conclusion and yield a little. If not, I see very little hope for our Parliamentary institutions. I have said this because I think it is the proper thing to say. Perhaps I have said it in extenuation of my own conduct and in self-justification.
THE EARL or LAUDERDALE: I shall not take up much of your Lordships' time. It will be generally accepted that whoever wins the argument in Parliament, irrespective of the voting, wins it at the street corners weeks or months later. The noble Lord, Lord Beswick, was so right, I thought. when he said that the question at issue in Clause 2, if one pursues it properly and deeply, is one of respect for the Constitution, respect for Parliament, and therefore respect for law. I submit that there is nothing profane in saying that. In Clause 2 we have been looking at the Executive in relation to Parliament. Therefore, if we are prudent, we surely shall have had in mind popular trust in Parliament, popular doubts about the Executive, proper Parliamentary doubts about the Executive and a proper Parliamentary zest to quiz and query the Executive and, if necessary, chase them from power. The control of the Executive has really been the issue. I have lost count, since the issue of Hansard dealing

1063
with Clause 1 is not available, of the unanswered questions on that Clause. I forbear to enumerate the unanswered questions which have been posed on Clause 2. But if my noble friends on the Front Bench stonewall they might ask themselves what is the story told them by way of reply in the Division Lobbies.
There has been a noticeable shrinkage in the Government vote and the Government majority. The number of noble Lords taking the Tory Whip is, of course, not officially divulged. Anyone can guess, and my own guess is somewhere around 370, which is about equal to the Government majority in October, when 451 voted for—and had I not been misguided it would have been 450—with 58 against. That represented a Government majority of 393, including many Liberals, Cross-Benchers and Socialists. Whatever "whipping" might or might not have been issued for Second Reading, the Tory vote shrank sharply from 451 on the general principle to no more than 189; in other words, a loss of 262 votes. The majority fell from 393 to 170—a loss of 223 between the vote in October and the vote on Second Reading. If the Government boasted—and they did—of the vote on the principle last October we are at least entitled to contrast it with the vote on Second Reading.
Then we are entitled to compare that with what has happened up till now. Word went round and rumours went round about the way in which the Committee was to be handled, and doubts and abstentions followed. This, unless I am very wrong in my journalistic intuition, occurred not without the intervention of some urgent Whips' telephone calls. But be that as it may, the Government's best vote on Committee so far has been 154 on Clause 1 and their best majority so far has been on Clause 2–127 just now on an Amendment of mine. But this majority shrank to only 60 last night and the total Tory vote last night was only 82. What happened to those noble Lords on the Tory side who voted in October and did not vote last night? This discrepancy was of no fewer than 390. What happened to those who were in favour on Second Reading but who did not vote now, giving a discrepancy of nearly 130?
1064
The fact, which may be disagreeable but it is only fair to bring it out frankly, is that your Lordships' House has been issuing this message to the Government in its own way, and no matter what "whipping", pressure or encouragement there may have been, a number equal to the whole Tory Whip (so far as one can guess what that is) have in fact abstained by staying away altogether. This has happened while the protestants against the whole operation have been fairly constant at around 30. Governments are bad; Governments are known to be bad: all Governments are bad and are known to be bad. The best Government is the least Government, and surely this lesson must penetrate the ears of the Executive. Britain can be governed, yes; Britain can be led, yes; Britain can be bulldozed, never.
A NOBLE LORD: Nonsense!
9.5 p.m.
THE LORD CHANCELLOR: I should like to remind the Committee that what we are discussing is the Question, Whether Clause 2 stand part, and therefore I do not propose to enter into my noble friend's fantastical imaginations beyond saying that if he really believes that there is not as strong an opinion in favour of this Bill and of our accession in this House as there ever was, his opinion differs profoundly from mine. It may be that a number of noble Lords have felt so convinced that our majority was secure that they did not feel it necessary to discommode themselves by attending, but it certainly was not because they showed the slightest sympathy with my noble friend's attitude, certainly on this side of the House.
I turn now to the other two speakers to whom we have listened. It is evident that we are not going to persuade one another and I therefore will say, as quietly and patiently as I may, what our attitude on this matter is. This Bill does all, but no more than all, that it is necessary to do in order to render possible our accession to the European Communities: and Clause 2 perhaps, apart from Clause 1 (but with Clause 1) is essentially the heart of the Bill. We have had a large number of Amendments. I do not want to criticise those who have put them forward, but from our point of view they

1065
have all been basically attempts to "eat your cake and have it". I will explain exactly what I mean by that. Of course it is possible for Parliament to exercise its undoubted sovereignty in a purely autarchic way, and that during the speech of the noble Lord, Lord Beswick, in spite of numerous protestations of internationalism, is precisely what I think he was basically advocating. Parliament can exercise its undoubted sovereignty in an autarchic way. Some of us are old enough to remember the chaos which existed before the war and to remember also what autarchy meant. The currencies of independent sovereign States played up and down against each other in a piratical fashion; there were enormous figures of unemployed, together with widespread poverty ending in international disaster. Now that is not the kind of way in which I personally would want Parliament to exercise its authority.
For the first time in my lifetime a new and imaginative idea has emerged and that is the idea of a Common Market which, at least in the economic sphere, will enable independent Parliaments to exercise their authority in a non-autarchic way. We have decided to accede at a point of time I think about twenty years after the inception of the first of the Communities, 12 years after the inception of the main Community. It operates in a particular way. Personally, I think that the conception operates probably in the minimal way necessary to give it effect. The way in which it is necessary to give it effect is that you have a Market and not a mere Free Trade Association, because it is necessary to have common rules centrally applied in order to prevent the piratical activities of individual Governments who want to be members, but at the same time to pursue their own individual interests. The philosophy underlying that is that if they operate their sovereignty in this way the interests of their peoples are better served. Obviously there are swings; obviously there are roundabouts; but if it means going back—as logically I think the noble Lord, Lord Beswick, would lead you to go back—to the awful situation that I remember in my young manhood, I can only say that it is not for me and I think it is not for most Members in this House.
1066
It is alleged that we have been un-reasonable in our resistance to numerous Amendments. If we had seen an Amendment which we thought we could accept and still be able, honourably, to make our accession in January, it might have been different. But basically the Amendments which have been proposed to this clause have been Amendments in which noble Lords (and I regret to say this) have deluded themselves into thinking that it was possible to have it both ways: to have the advantages of autarchy, yet to join a Common Market. They were not improvements to the Bill. I daresay that they were intended to be improvements to the Bill. But they were ways of rendering the Bill unworkable and accession impossible. This was our belief. The noble Lord, Lord Beswick, is entitled to his opinion. He stated it at length. I am now stating mine as I am entitled to do.
LORD BESWICK: Would the noble Lord allow me to interrupt? Would he say that the very first Amendment moved was designed to make the Bill unworkable?
THE LORD CHANCELLOR:I cannot remember which the first Amendment was and therefore I would not commit myself to that. What I will commit myself to is that I cannot remember an Amendment to Clause 2 which would not have either rendered accession impossible, or the Bill unworkable. It was on that basis that we have argued them out.
We now come to the situation that Clause 2 is attacked as somehow under-mining the rule of law. I was wholly unable to understand what Bernie Steer had to do with Clause 2 of the European Communities Bill. It was apparent to the noble Lord, Lord Beswick, but not to me. The truth is that there are two ways of viewing law; you can view a narrow law operating over a small and narrow community. No doubt that is very agreeable; it is a form of paro-chialism. Its limitation is that if you try to do it, and your economic and social base is too small, the interests of your community will not thereby be served. We believe that the base of a Community of 10 European nations is more likely to succeed for the people of this country

1067
than the base of one individual Community, or 10 individual Communities operating in competition with one another and being fairly free to operate their own economic systems to the detriment of one another's interest. That is the basic difference between us. If you believe the former it is simply self-delusion to believe
Resolved in the affirmative, and Clause 2 agreed to accordingly.
that you can do without Clause 2 in an unamended form.
9.14 p. m.
On Question, Whether Clause 2 shall stand part of the Bill?
Their Lordships divided: Contents, 131: Not-Contents, 23.

CONTENTS

Aberdare, L.

Gainford, L.

Orr-Ewing, L.

Abinger, L.

Goschen, V.

Penrhyn, L.

Ailwyn, L.

Gowrie, E.

Perth, E.

Albemarle, E.

Gridley, L.

Polwarth, L.

Amory, V.

Grimston of Westbury, L.

Poole, L.

Astor of Hever, L.

Hailes, L.

Rankeillour, L.

Balerno, L.

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

Reay, L.

Balfour, E.

Redmayne, L.

Belhaven and Stenton, L.

Hanworth, V.

Reigate, L.

Belstead, L.

Harcourt, V.

Rhyl, L.

Berkeley, Bs.

Harvey of Prestbury, L.

Robbins, L.

Bessborough, E.

Hastings, L.

Rothermere, V.

Blake, L.

Hawke, L.

Ruthven of Freeland, Ly.

Brabazon of Tara, L.

Hemingford, L.

St. Just, L.

Brentford, V.

Henley, L.

Saint Oswald, L.

Brooke of Cumnor, L.

Hewlett, L.

Sandford, L.

Brooke of Ystradfellte, Bs.

Hives, L.

Seear, Bs.

Burnham, L.

Hood, V.

Selborne, E.

Coleraine, L.

Hylton, L.

Selkirk, E.

Colville of Culross, V.

Inchyra, L.

Sempill, Ly.

Cork and Orrery, E.

Jellicoe, E. (L. Privy Seal.)

Shaftesbury, E.

Cottesloe, L.

Kemsley, V.

Somerleyton, L.

Cowley, E.

Kilmany, L.

Stonehaven, V.

Craigavon, V.

Limerick, E.

Stradbroke, E.

Crathorne, L.

Lothian, M.

Strathclyde, L.

Croft, L.

Macleod of Borve, Bs.

Stratheden and Campbell, L.

Cullen of Ashbourne, L,

Macpherson of Drumochter, L.

Swansea, L.

Daventry, V.

Mancroft, L.

Swaythling, L.

Davidson, V.

Massereene and Ferrard, V.

Tanlaw, L.

De L'Isle, V.

May, L.

Terrington, L.

Denham, L. [Teller.]

Merrivale, L.

Teviot, L.

Derwent, L.

Mersey, V.

Thorneycroft, L.

Digby, L.

Middleton, L.

Trefgarne, L.

Drogheda, E.

Mills, V.

Tweedsmuir, L.

Drumalbyn, L.

Milverton, L.

Tweeedsmuir of Belhelvie, Bs.

Dundee, E.

Monk Bretton, L.

Vernon, L.

Eccles, V.

Mountevans, L.

Vivian, L.

Elles, Bs.

Mowbray and Stourton, L.

Wakefield of Kendal, L.

Elliot of Harwood, Bs.

Moyne, L. [Teller.]

Waldegrave, E.

Emmet of Amberley, Bs.

Netherthorpe, L.

Ward of Witley, V.

Essex, E.

Newall, L.

Wolverton, L.

Falmouth, V.

Northchurch, Bs.

Wynford, L.

Ferrers, E.

Nugent of Guildford, L.

Yarborough, E.

Fisher, L.

Onslow, E.

Young, Bs.

NOT-CONTENTS

Bernstein, L.

Hoy, L.

Shinwell, L.

Beswick, L.

Lauderdale, E.

Strabolgi, L. [Teller.]

Blyton, L.

Maelor, L.

Taylor of Mansfield, L.

Davies of Leek, L.

Milner of Leeds, L. [Teller.]

Watkins, L.

Gray, L.

Nunburnholme, L.

Wells-Pestell, L.

Greenwood of Rossendale, L.

Phillips, Bs.

White, Bs.

Heycock, L.

Rhodes, L.

Wynne-Jones, L.

Hirshfield, L.

Rusholme, L.

9.24 p. m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 44:
After Clause 2 insert the following new clause:
".Nothing contained in subsection (1) of the preceding section shall apply to any enforceable Community right, and no provision shall be made in accordance with subsection (2) of the preceding section, if and to the extent that both Houses of Parliament resolve that such Community right, if given effect in accordance with subsection (1) of the preceding section, or, as the case may be, such provision, if made in accordance with subsection (2) of the said section, would or might result directly or indirectly in the powers of Parliament as existing at the entry date—

(a) to decline its assent to the imposition of any new or additional financial obligation on any of Her Majesty's subjects, or

(b) to make such provision as may seem to be necessary or desirable to safeguard the external or internal security of the United Kingdom, or

(c) to take such steps as may seem necessary or desirable to protect vital national interests of or to prevent the erosion of the essential national sovereignty of the United Kingdom being removed lessened or restricted or their exercise in any way inhibited."

The noble and learned Lord said: I move Amendment No. 44, which is designed to place before the Committee for consideration a new and different proposal relating to Parliamentary control. I think I can move the Amendment the more shortly for the reason that we have already traversed a number of the arguments which are relevant to this proposal. We have in our debates drawn, in my opinion quite rightly, a sharp distinction between the concept of Parliamentary supremacy and that of Parliamentary control. May I give, in order to pass from it, my own view with regard to Parliamentary supremacy?
Last night my noble friend Lord Beswick, on Amendment No. 28, raised the broad question whether, once we have enacted this particular Bill into law, we can ever draw back. He raised the question as to whether it would still be open to us to repeal the Act (as this Bill would then be) and to pull back from the position in which the Act would place us. I ventured to cite what I thought was most illuminating language from a judgment delivered by the noble and learned Lord, Lord Denning, in a case of Blackburn v. The Attorney General. Lord Denning pointed out that
1070
while we can theoretically repeal any Act—nothing can stop Parliament from repealing any Act—in fact when one is speaking about an Act of this character the possibility of repeal is only a theoretic one. The noble and learned Lord drew a comparison with Section 4 of the Statute of Westminster and other Acts giving independence to Commonwealth countries. The conclusion he drew was that once we had ceded sovereignty it could never be recalled. That is a position which I personally accept. I think it should be the case. I regard the situation in which we now find ourselves as one on which we ought to accept the fullest implications. From my point of view we certainly do, to a not insubstantial degree, cede something of our Parliamentary sovereignty—and so we should. Without that, in my opinion at any rate, it would be quite impossible to join the Community.
When we were discussing the Question, Whether Clause 2 should stand part of the Bill, the noble and learned Lord the Lord Chancellor voiced his hopes of the Community: I share those hopes; I think we are in the presence of a stupendous historical event, and I believe that the step we are now taking, irrevocable as I believe it is, can lead to enormous betterment in the affairs of mankind. Theoretically, of course—I hope it will never be practically—strains could develop within the Community which would mean that in some future period it might spring apart and be destroyed. Theoretically, the big joint stock banks may at some future date find it impossible to meet a cheque for £5. If they do, our financial situation will be so chaotic that we might as well reconcile ourselves to a period of disaster. Similarly, in my opinion, if such strains should develop as would lead to the disruption of the Community we would again be in a period of major catastrophe; the pre-war disorders and all that led to the Second World War might face us again.
So I start my argument on this particular proposal by saying outright that certainly I think we have ceded our supremacy to a not inconsiderable extent; we have ceded it for good and all (or we shall have done so when we enter the Community on January 1 of next year) and I accept it. I do not complain: I think we are bound to do it and I think

1071
we are right to do it. The corollary of that view—if that view is right—is, I hope I may say, expressed in the Amendment which I commend to your Lordships for consideration. If one accepts that we shall have fully and finally entered the Community, with all that that involves in the matter of cession of Parliamentary sovereignty, does not the converse of the argument become the more compelling: that it is desirable that some sort of safety valve should be created—a safety valve which would prevent this country from being compelled to go too far against what it regards as its absolutely vital national interests, as the result of some turn of events which probably we cannot now foresee? It is difficult to predict the course of history. One does not know how human affairs may develop.
I say at once that it is, in the circumstances as I envisage them, extremely unlikely that any Community right or obligation—as I think they are formulated and result from the incorporation of directly applicable law as part of our own law—would be likely to have the effect of impelling this country to go too far; in other words, of driving it into a situation in which it genuinely thought that its essential national sovereignty and interests were in a real sense imperilled. I regard that as a situation which is most unlikely to occur.
If one could foresee the course of events with complete accuracy one could say "Yea" or "Nay" to the question whether a situation of that sort will occur. It is not given to our understanding to peer into the future and read so certainly the march of events over the years. Therefore I and those associated with me in the preparation of this Amendment have sought in paragraphs (a), (b) and (c) to define those situations which in our submission might impinge directly on what could be properly regarded as those things which are essential for us to preserve and decide for ourselves. Paragraph (c) uses the phrases "vital national interests "and" essential national sovereignty". They are borrowed from the White Paper which was issued in 1971, and I hope that your Lordships will regard them as satisfactory phrases. We link with them the words in paragraph (b):
1072
."… to safeguard the external or internal security of the United Kingdom."
That follows closely the concept embodied in paragraph (c). In paragraph (a) we seek to preserve what I would have thought was something very deeply ingrained in our Constitution, namely, the right of Parliament to refuse its consent to the imposition of what I might loosely call "taxes".
To ring round those three provisions, I hope I do not with gross inaccuracy describe them as matters pertaining to our essential national interest. The proposal proceeds to embody the concept that if both Houses of Parliament—I stress both Houses and not one—
"… resolve that such Community right, if given effect"—
in the way I have described
… would or might result directly or indirectly in the powers of Parliament as existing at the entry date"—
being removed, lessened, restricted or their exercise in any way inhibited—this is spelled out in paragraph (c)—then the result would be that the particular Community right which otherwise would, as the result of the application of Clause 2, become part of our law, would be excluded.
That is the proposal and it goes to the question of Parliamentary control and not Parliamentary sovereignty. It is designed to reserve for Parliament the ultimate right to say in the event of both Houses being convinced, and being ready so to resolve, that we are being driven past what we can reasonably be expected to bear in the sense of having our national sovereignty eroded, that the Community legislation which is to be directly applicable will not become part of our law.
That is the proposal. I accept at once that such a joint Resolution would be very rare. I hope it would never have to be passed, but it certainly would be very rare. It could only arise in a case which one can loosely call a case of in extremis. What can be said against it? I am not suggesting there are not arguments against it. It would be impertinent to do so and I accept at once that there are. One is the argument that if we incorporate such a provision in our legislation we shall be infringing the obligations which we undertake by becoming members of

1073
the Community. If it is so, it is, if I may say so I hope not too inaccurately, a fairly serious charge. I use the word "fairly" because in the context in which I seek to incorporate this limitation of the Community rights application, it can hardly be said to be really very morally culpable. If all we do is to preserve the right of our own Parliament to prevent changes in our law which in the ultimate resort may seem to drive us too far beyond the point which nations can be expected to endure even if in so doing we breach our obligations in the Community, morally we can hardly be said to be culpable or in any substantial sense failing to implement the obligations which we have honourably undertaken.
What is the practical situation? Supposing such circumstances arose as in the opinion of both Houses of Parliament were likely to drive us up to and beyond that extreme point. Is it really likely that the Commission under the provisions of the Rome Treaty would take us before the European Court? I put it to the Committee for consideration that the practical implication is that there would be next to no likelihood of our actually being brought before the European Court. I would add that the substantial breach, if there is one, would not really be enacting this particular provision, if it commends itself to your Lordships. The breach would consist in the passing of the Resolution by both Houses of Parliament which would have the effect of preventing the relevant Community obligation becoming part of our law. That is the breach. If the situation actually arose obviously it would be a consideration prominent to Members of both Houses of Parliament that if they passed the Resolution they would, or might be, commiting a breach of the Treaty obligations. I submit to your Lordships that if in adopting this new clause we do breach our Treaty obligations, it is not a morally culpable breach but is a breach which is most unlikely in fact to result in our being brought before the European Court and told that we must not proceed on the lines which I propose. Furthermore—and I hope I do not tautologically emphasise this—the breach in fact and in substance would consist in the Resolution of both Houses and not in adopting this proposal as part of the Bill.
1074
As I have said, Parliament would have to consider before it resolved whether its Resolution in so resolving would constitute a breach or not.
May I travel away from our own situation for a moment. I would have thought that experience did show that when you had enormous agglomerations of people they may not really, in the long run, hold together over the years, over the decades, unless you do have something like the provision in the Security Council in the United Nations, where a decision cannot be taken, other than a procedural decision, except with the concurring votes of all the seven permanent members. I remember well when the Charter of the United Nations was being prepared in San Francisco, in I think 1946, when it emerged with that veto provision—as it is always called—that there was a great deal of disappointment about it. It was said, "If you have that veto you are stultifying the whole purpose of the Charter of the United Nations", and many people were distressed about it; and, as we know, it has been used in a way which frequently has disappointed those who believed greatly in the efficacy of the United Nations. I put it to your Lordships' consideration that it is not unlikely that without it the United Nations itself might have gradually disintegrated. We know the melancholy history of the decline of the League of Nations.
Whatever we do, I hope that when we enter into this Community of nations it will prosper and grow more powerful and more influential all over the world. It is said by many of your Lordships that we could be of much more utility to the Commonwealth countries and the countries which are backward and poorer than ourselves if we had the added security and strength which membership of the Community should bring to us over the years. That is the proposal. I hope your Lordships will not think it conflicts with the spirit of what we are honestly and honourably undertaking. I submit that it does not, for the reasons I have given. I submit that really one must have something, some kind of safety valve, and I deal here with Community rights, not decisions. In so far as decisions are concerned, we already have the Luxembourg Compromise, which has been found in practice to be necessary.
I conclude with this comment, made by a number of noble Lords and notably by the noble and learned Lord, and with which I agree: that it is no good looking to the dry letter of the law only; the great question with which we are confronted is how in practice this Community of 300 million people is going to develop. The law is the framework, but it is the spirit which will unite the aspirations of all these people and will give the answer to history of whether it has or has not succeeded. I pray that principle in aid in submitting to your Lordships that even if technically a proposal of this sort might involve some breach of some obligation, the spirit of the Community legislation is that it is not its purpose, not the intended result, to drive any nation too far. I do not speak from experience, but I should have thought that most of those who earnestly believed in the future of the Community would readily say, "No, we do not want to do that". I accept that it is most unlikely to happen. But this is a long-stop, a safety valve to preserve the position should such a situation, contrary to our expectations, ever arise. I beg to move.
LORD SHINWELL: We have just had an example of a classical, honest, and indeed impassioned supporter of British entry into the Common Market moving an Amendment. His speeches in the course of our debates on the Committee stage give the lie to the suggestion that has come from the Government Front Bench that the Amendments, generally speaking, were designed to weaken the legislation. To weaken the legislation is the furthest thing from my noble and learned friend's mind. But I can promise him this: that his Amendment will be rejected, as every one of his Amendments has been rejected. Those are the thanks he will get for seeking to improve the legislation.
I want to address myself to only one aspect of this Amendment. It is subsection (b), which reads as follows:
"to make such provision as may seem to be necessary or desirable to safeguard the external or internal security of the United Kingdom,"
I only wish to say a few words about the external security of the United Kingdom. One of the basic principles,
1076
indeed perhaps the most basic principle of national sovereignty, is the desire for security and the capacity to prevent aggression. It may be argued that there is nothing in the Treaty of Rome dealing with defence, dealing with external security; but at the same time it cannot be denied that many references have been made about defence becoming part of European unity. That indeed is the intention of the Government, as expressed in many speeches in the other place and elsewhere. Are we going to allow ourselves to be subordinated to any decision that may be taken in the Community which affects our capacity to prevent aggression, or to participate in any act—perhaps of a unified character, not necessarily with the countries of the Six, but perhaps with the United States or the Commonwealth—in order to secure ourselves against defeat? This is the question that we are entitled to ask.
If the Government say that it has nothing to do with the Treaty of Rome, and nothing to do with the Treaty of Accession, then I venture to warn them that in the future this matter of defence is bound to emerge, and we have no safeguard against any decision by any of the countries of the Six who may embroil us in a conflict. Take the case of France. Can we rely on France? France has contracted out of NATO. There is no evidence that France wishes to return to NATO. If, for example, there should be a conflict between East Germany and West Germany, or if there is a breakdown of the negotiations between Soviet Russia and West Germany and a conflict ensues, have we any guarantee that any of the countries of the Six will come to our aid? None whatever. Have we any assurance that we can act independently and resort to acts of defence against an aggressor, in view of our subordination to the Community in war, in economics, in industry and commerce, and indeed in all matters affecting national or municipal law? I think we are entitled to ask that question. For that reason, though I do not expect the Government will accept the Amendment, I think we ought to take notice of what my noble and learned friend has said, and the subsection contained in the Amendment.
9.47 p.m.
LORD BELHAVEN AND STENTON: I hope that the Government are not going

1077
to stonewall this Amendment as they have stonewalled every other Amendment in the Bill. There are those of us on this side of the House who remember, when we were in Opposition, that we said that it was the duty of this House to pass Amendments back to the House of Commons. Is this to be only the case when the Labour Party is in office, or are we to pass Amendments back from this House on important Bills when the Conservative Party is in office too?
I must say that from my point of view I am very worried about this matter. It seems to me that the Government are trying to stonewall every one of the Amendments to the Bill. They are trying to resist every Amendment that is proposed. The noble and learned Lord, Lord Stow Hill, is well known to be in favour of the Common Market, and this is not a wrecking Amendment. We have had many other Amendments which are not wrecking Amendments, but not one has been accepted by the Government, or even considered by them. Speaking from this side of the House, I am very disappointed and worried that the Government are behaving in this way. We had the Housing Finance Bill, which was forced through this House before this Bill. This is one of the most important Bills that has come to this House since the Union with Scotland—and I am a Scot—and yet we are supposed to hurry the Bill through at the end of the Session, because we want to go on holiday and because Mr. Heath wants to have it in his knapsack in October. I think that for a House of Parliament this is intolerable and we should take more time over it.
THE EARL OF BALFOUR: I have listened to the speeches on nearly every Amendment that has been put down but I have not yet heard a single argument which has made me feel that an Amendment should be accepted. Equally, I feel that this Amendment also should not be accepted, and I shall very briefly give your Lordships the simple reasons why I say that. I should like to refer to the three paragraphs (a), (b) and (c). Paragraph (a), which deals with financial obligations, is quite clearly covered by Schedule 2, which states that Clause 2
"… shall not include power—
(a) to make any provision imposing or increasing taxation".
1078
I do not think I need say any more on that point.
Paragraph (b) deals with external and internal security. There is nothing whatever about security in the Treaty of Rome, and the only time that I have come across the word "security" is in Articles 24 to 27 of Section 3 of the Treaty of the Atomic Energy Community. They are mostly concerned with security in the field of research into nuclear energy, which is covered in Annex 1 to that Treaty. So, I feel that we do not need to deal with that subject. Going into the Common Market need not, and should not, in any way affect our relationship with NATO. Whether or not we have our troops in Germany has nothing to do with the E.E.C. I must admit that Britain's voting power in Europe, if we go for a union of nations on the question of defence, could be a very great step forward in the security of the whole of Europe, but this is something which we can negotiate only when we are in. So far as treaties go, we have broken as many treaties as we have ever kept. This has happened all the way through history. We have made and broken treaties with every country in Europe. I think the only country with whom we have had a treaty which we have never broken—and my history is not very good—is Portugal, our oldest ally.
I should like to read a fraction of paragraph (c). That states
… or to prevent the erosion of the … sovereignty … being removed".
That appears to me to be something of a double negative but, again, draftsmanship is not one of my strong points. But in the Common Market, Italy has an Italian Government which is in complete control of that country, and it is the same in France, Germany and Luxembourg. The Treaty has not altered their Governments in any way, but they have agreed to co-operate in making the European Economic Community work. I really feel that this Amendment is totally unnecessary.
VISCOUNT HANWORTH: If, as many of us feel, by going into the Economic Community we are looking to the future, then we must go in completely wholeheartedly, without taking too many precautions and without too many "ifs" and "buts". If the worst comes to

1079
very worst I feel sure that one can always simply not obey regulations, as has happened. But unless the Community is going to go together with determination and try to agree and to move forward in agreement, it will not succeed. If we go on niggling over every clause, then the last thing the Community will ever do is pull together if other people follow our example. Therefore I feel that practically every Amendment at which I have been present should never have been put forward.
EARL JELLICOE: Perhaps it would be for the convenience of the Committee if I answered the debate which has gone fairly wide—and perhaps I should, if your Lordships' will excuse me, address myself to the particular Amendment for a short time. It contains two propositions and I should like to deal with them separately but briefly. As I read Lord Stow Hill's Amendment it is that no enforceable Community right shall apply to the United Kingdom under subsection (1) of Clause 2 if both Houses of Parliament resolve that it would, could or might limit the power of Parliament in certain areas, the areas specified in paragraphs (a), (b) and (c) of his Amendment. That is the first proposition.
I would inform the noble Lord, Lord Shinwell, if he were here, that he is not a prophet without honour in this House because the Amendment is unacceptable) and I must tell my noble friend Lord Belhaven and Stenton that it is unacceptable to Her Majesty's Government. It is unacceptable because it would be contrary to our Treaty obligations. Under Article 2 of the Act of Accession, the provisions of the original Treaties and instruments adopted by the institutions of the Community are to be binding on the new member-States and will apply to those States under the conditions laid down in the Treaty and the Act of Accession. This applies equally—and I know that I am speaking to a lawyer, and a distinguished lawyer at that—to rights and obligations.
To provide, therefore, as the Amendment of the noble Lord, Lord Stow Hill, provides, that in certain circumstances some rights should not apply, would be to cut straight across this requirement. If we are to join the Community we must
1080
accept directly applicable Community law as a whole. That is a fundamental obligation of membership, the obligation written into Clause 2(1) of the Bill. I very much agree with what was said by the noble Lord, Lord Shinwell, and the noble Viscount, Lord Hanworth: that if we are going to join the club we must abide by the rules of the club. One of the fundamental rules is the principle of directly applicable Community law in the areas where it bites. The first proposition contained in Lord Stow Hill's Amendment would run counter to that principle.
The second proposition embodied in the Amendment is that no action should be taken under Clause 2(2) if both Houses of Parliament resolve that such action would limit the powers of Parliament in such areas. The practical effect of such a Resolution would be to annul any of the relevant orders or regulations made under Clause 2(2) and would prevent their being made. But as the noble Lord, Lord Stow Hill, knows, the Bill already provides Parliament with power to annul or prevent the making of an order or regulation under this clause. I would therefore suggest to Lord Stow Hill that this provision is quite unnecessary. As I see it the Bill provides greater safeguards as it affects Clause 2(2) than those proposed in the Amendment, because those safeguards apply to all actions under Clause 2(2) and not solely to the action relating to particular areas singled out in the subsections of the noble and learned Lord's Amendment.
Having said that, may I say that I recognise the feeling behind the Amendment: that our country could be forced to accept Community law with which it does not agree; forced to go too far, as the noble and learned Lord put it. All I would suggest is that those noble Lords who feel this underestimate the influence which we shall bring to bear. As soon as we accede to the Treaty and are full members we shall be able to play our full part in the Council of Ministers. Our Foreign Minister will play his full part and we shall be at the heart of the Brussels affair. This will not be a closed circle, as I pointed out when answering an Amendment yesterday. The procedures of the Commission and of the Community are open and consultative. There is plenty of chance for us to bring our

1081
influence to bear, not only in the Council of Ministers but also through all the other organisations and channels of the Community. So we shall be in a position to influence Community policy at the formative stage and I see no reason to believe that Parliament will be asked to implement laws which the United Kingdom has had no part in making.
May I turn briefly to the three sub-sections? Regarding subsection (a) the financial obligation, all I wish to say is that I agree entirely with what was said by my noble friend Lord Balfour. My interpretation is his.
LORD BESWICK: I probably misunderstood what the noble Earl said, but I thought that he was saying that Schedule 2 was some protection against increased financial obligations. Schedule 2, of course, does not apply to anything other than subsidiary legislation. Therefore I should not have thought that the noble Earl was right. May I ask the noble Earl, Lord Jellicoe, under what provision would the Community increase, for example, our 1 per cent. contribution from the value added tax to the Community budget? Would it be possible for them to take that action if my noble friend's Amendment is not accepted?
EARL JELLICOE: My understanding was that my noble friend Lord Balfour was absolutely correct in what he said about Clause 2(2).
LORD BESWICK: But not Clause 2(1).
EARL JELLICOE: He was not referring to Clause 2(1). I think his argument was bearing on the financial aspect and confined to Clause 2(2). All I was doing was corroborating what he said so far as Clause 2(2) was concerned. Regarding V.A.T., my understanding is that any substantive decision in this area of what I think is called "own resources" requires a unanimous agreement between member-States. This could not be given effect to without an Affirmative Resolution to an Order in Council under Clause 1(3) of the Bill. That is my understanding, and it seems to me to safeguard Parliamentary scrutiny in this area.
LORD BESWICK: That being the case, if it requires a unanimous decision before that increase in the financial obligation can be carried out, in what way does that
1082
conflict with what my noble friend is asking for?
EARL JELLICOE: May I turn from that? I will come back to it. My objection is more fundamental to subsection (c) than to subsection (a) although I think it is fairly fundamental to subsection (a). I should like just to deal with subsection (b), the point which the noble Lord, Lord Shinwell, asked about, the question of external and internal security.
As the hour is getting late, I should like to direct noble Lords' attention to three Articles in the E.E.C. Treaty which bear on this. Articles 36, 224 and 225 are the really relevant ones. If those Articles are considered together, it will be seen that implicitly they accept that under crisis conditions—the sort of conditions to which I think the noble Lord, Lord Stow Hill, was referring—such as serious internal disturbances affecting the maintenance of law and order, or the event of war, or serious international tension constituting a threat of war, member-countries may have no choice but to take steps which might otherwise be inconsistent with the E.E.C. Treaty. This is already written into the Treaty, and therefore we are accepting it.
So far as the vital national interest is concerned, we have already discussed the relevant provision at great length during debates on previous Amendments. All I wish to say is that it is wrong, in our view, to seek to import into Statute law, with its necessarily precise phraseology, a snapshot, as it were, of the political facts of life in the Community. Indeed, it is virtually impossible to do so. Secondly, as my noble and learned friend the Lord Chancellor has argued, to try to give legal expression to the position described in the Luxembourg communiqué would, in the last resort, be contrary to Article 148 of the E.E.C. Treaty. In that connection, I would suggest that it would be quite wrong, therefore, for an acceding State to try to give internal legal force to a state of affairs which has not been defined as a Treaty or formal agreement by the present Community, however real that situation might be in political terms.
The corollary of this, in the words of the White Paper of last year, is that there is no question of any erosion of essential

1083
national sovereignty. But I should like to quote, and to emphasise, what the White Paper goes on to say. These words are now familiar to many of your Lordships. What is proposed is,
"a sharing and enlargement of individual national sovereignties in the general interest".
We stand by that. Indeed, it is the very heart of this matter. There, in essence, is the reason why we and, if I may say so diffidently, our predecessors have been drawn towards Community membership and why we feel that in this latter half of the 20th century it is essential to the successful advancement of our interest and indeed that of Europe. Perhaps I have gone rather wider than the noble Lord's Amendment. As a layman to a lawyer I would submit diffidently that its first proposition is seriously defective because it runs clean counter, as I see it, to our acceptance of the full Community obligations.
However, I hope that I have dealt not unsympathetically with the noble Lord's Amendment and that to a certain extent I may have been able to appease my noble and disquieted friend Lord Belhaven and Stenton in suggesting to him that, should the noble Lord care to press this Amendment, we must perforce resist it.
LORD STOW HILL: The noble Lord has obviously felt and seriously approached the anxieties which are held with regard to this matter. He has said that there are defects in the proposal as drafted. As the draftsman, each time I read it I become more embarrassed by its very obvious defects. I moved the Amendment solely for the purpose of placing before the Committee for its consideration this approach, perhaps the last approach, to the question of safeguarding Parliamentary control. My own disposition, having I hope sensed the general reception by the Committee of my proposal, would be to ask leave to withdraw the Amendment. But I think probably, I hope in the discharge of my duty, I ought not to ask that permission because it has been made clear that there are deep anxieties about this. In those circumstances I think it would be to the general interest to ascertain how strong the feeling of this Committee may be. For that reason I feel that I ought to ask that the voices of the Committee be taken and not to ask leave to withdraw the Amendment.
On Question: Whether the said Amendment (No. 44) shall be agreed to?
Their Lordships divided: Contents, 23; Not-Contents, 126.

CONTENTS

Ardwick, L.

Greenwood of Rossendale, L.

Rusholme, L.

Arwyn, L.

Hirshfield, L.

Shackleton, L.

Belhaven and Stenton, L.

Hoy, L.

Stow Hill, L.

Bernstein, L.

Lauderdale, E.

Strabolgi, L. [Teller.]

Beswick, L.

Milner of Leeds, L. [Teller.]

Watkins, L.

Blyton, L.

Nunburnholme, L.

White, Bs.

Davies of Leek, L.

Phillips, Bs.

Wynne-Jones, L.

Gray, L.

Rhodes, L.

NOT-CONTENTS

Aberdare, L.

Cork and Orrery, E.

Elliot of Harwood, Bs.

Abinger, L.

Cottesloe, L.

Essex, E.

Ailwyn, L.

Cowley, E.

Exeter, M.

Amory, V.

Craigavon, V.

Falmouth, V.

Astor of Hever, L.

Craigmyle, L.

Ferrers, E.

Balerno, L.

Crathorne, L.

Fisher, L.

Balfour, E.

Croft, L.

Gainford, L.

Belstead, L.

Cullen of Ashbourne, L.

Goschen, V.

Bessborough, E.

Daventry, V.

Gowrie, E.

Blake, L.

Davidson, V.

Gridley, L.

Boyle of Handsworth, L.

De L'Isle, V.

Grimston of Westbury, L.

Brabazon of Tara, L.

Denham, L. [Teller.]

Hailes, L.

Brentford, V.

Derwent, L.

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

Brooke of Cumnor, L.

Digby, L.

Brooke of Ystradfellte, Bs.

Drogheda, E.

Hanworth, V.

Burnham, L.

Drumalbyn, L.

Harcourt, V.

Chelmer, L.

Dundee, E.

Harvey of Prestbury, L.

Chesham, L.

Eccles, V.

Harvey of Tasburgh, L.

Colville of Culross, V.

Elles, Bs.

Hastings, L.

Hawke, L.

Mountevans, L.

Selkirk, E.

Hemingford, L.

Mowbray and Stourton, L. [Teller.]

Sempill, Ly.

Henley, L.

Shaftesbury, E.

Hewlett, L.

Moyne, L.

Somerleyton, L.

Hives, L.

Netherthorpe, L.

Stonehaven, V.

Hood, V.

Newall, L.

Stradbroke, E.

Hylton, L.

Northchurch, Bs.

Strathclyde, L.

Inchyra, L.

Nugent of Guildford, L.

Stratheden and Campbell, L.

Jellicoe, E. (L. Privy Seal.)

Onslow, E.

Swansea, L.

Kemsley, V.

Orr-Ewing, L.

Tanlaw, L.

Kilmany, L.

Perth, E.

Terrington, L.

Limerick, E.

Polwarth, L.

Teviot, L.

Listowel, E.

Poole, L.

Trefgarne, L.

Lothian, M.

Rankeillour, L.

Tweedsmuir, L.

Macleod of Borve, Bs.

Reay, L.

Tweedsmuir of Belhelvie, Bs.

Macpherson of Drumochter, L.

Redmayne, L.

Vernon, L.

Mancroft, L.

Reigate, L.

Vivian, L.

Massereene and Ferrard, V.

Rhyl, L.

Wakefield of Kendal, L.

May, L.

Robbins, L.

Waldegrave, E.

Merrivale, L.

Rothermere, V.

Ward of Witley, V.

Mersey, V.

St. Just, L.

Wynford, L.

Middleton, L.

Saint Oswald, L.

Yarborough, E.

Mills, V.

Sandford, L.

Young, Bs.

Monk Bretton, L.

Selborne, E.

Resolved in the negative, and Amendment disagreed to accordingly.

House resumed.

LAND CHARGES BILL
Returned from the Commons agreed to.
BATH SIDE BAY DEVELOPMENT BILL BRITISH TRANSPORT OCKS BILL ESSEX RIVER AUTHORITY BILL GREATER LONDON COUNCIL (GENERAL POWERS) BILL
Returned from the Commons with the Amendments agreed to.
LIVERPOOL CORPORATION BILL LONDON TRANSPORT BILL SELNEC (MANCHESTER CENTRAL AREA RAILWAY &c.) BILL THAMES BARRIER AND FLOODP REVENTION BILL
Returned from the Commons with the Amendments agreed to.