§ 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 moved Amendment No. 33:
Page 3, line 2, leave out from ("rights") to end of line 10.
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).
§ BARONESS WOOTTON OF ABINGER
Is it still the wish of the noble Lord, Lord Stow Hill, that the Amendment be 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?
§ 4.45 p.m.
§ 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: 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.
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?
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.
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?998
§ Their Lordships divided: Contents, 37; Not-Contents, 150.997
|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.|
|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 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—
(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: 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—
§ 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 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
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 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—
§ 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.
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.