HL Deb 08 August 1972 vol 334 cc1045-85

8.0 p.m.

House again in Committee.

LORD SHACKLETON moved Amendment No. 43: Page 3, line 41, after ("shall") insert ("unless the contrary appears").

The noble Lord said: I beg to move Amendment No. 43. It may help those of your Lordships who are not still having dinner if I explain the meaning of this Amendment, although I do not doubt that the Government Front Bench have already studied it with their customary care and have found perhaps some good reason, or bad reason, for not accepting my Amendment. The effect of the Amend- ment is to make clear that any future Act of Parliament shall prevail over any provisions in this Bill, or particularly in this clause, provided it is expressly clear that it is intended to do so.

We had a particularly helpful discussion just before we broke, in which the noble Viscount, Lord Colville of Culross, as my noble friend Lord Beswick said, took great trouble to explain the position of the law and its construction, and came to a view as to how it would, if this is the right term, "be operated" by the courts. His position was further strengthened by an admirable and authoritative intervention by the noble and learned Lord, Lord Diplock. I am bound to say that I wish it were possible in these difficult legal matters now and again to have that sort of authoritative intervention, because however skilled the Government Front Bench are, and however much we may trust noble Lords opposite, it does not carry quite the weight of an ex cathedra statement from the Cross-Benches. One of the advantages of having the Law Lords in this House is that they are able—all too infrequently, alas!—to give us advice.

Notwithstanding what we have been told by the noble and learned Lord, Lord Diplock, and the noble Viscount, Lord Colville of Culross, the fact remains that until this matter is tested in the courts an uncertainty will remain. My noble friend Lord Beswick has quoted Professor Wade and others, and our concern was increased by the speech of the noble and learned Lord, the Lord Chancellor, on Second Reading. It is quite likely that I shall not be interpreting him absolutely fairly, although I will try to do so, because this is a difficult matter for a layman. He said: It is to meet this difficulty that Clause 2(4) has been inserted as an express provision in the Bill in so far as it provides that obligations arising under Clause 2(1) (Community obligations) have precedence over subsequent enactments."—[OFFiciAL REPORT, 25/7/72, col. 1230.] It is perhaps difficult to interpret the noble and learned Lord, the Lord Chancellor, simply by relying on that one sentence, because he went on to indicate that he was referring to a matter of construction. This was the point with which the noble Viscount, Lord Colville of Culross, dealt at some length. It appeared that the noble and learned Lord was saying that subsequent enactments would take precedence—


That the Community law would take precedence.


—that the Community law would take precedence over subsequent enactments, and this has caused us a good deal of concern. If I understand the noble Viscount and the noble and learned Lord, Lord Diplock, it is likely that a subsequent Act of Parliament, if it said something quite clearly in conflict with one of the Community obligations (say one of the directly applicable ones) and had been duly passed, would in fact not be subordinate to that earlier obligation. Talking in practical terms, as the noble and learned Lord, Lord Diplock, said, it is assumed that Parliament will not pass such laws except possibly inadvertently, or because the Parliamentary draftsmen had got it wrong, unless in fact it deliberately decided that it was going to undertake something which would be in breach of the Treaty, with all the consequences that would flow from that.

I hope that so far I am correct in the way that I have propounded this situation. None the less, doubts do remain. This is a crucial issue, because the statement of the noble and learned Lord on the Woolsack—possibly taken out of context—does not apply just to the question of construction, but suggests that a Community obligation already entered into has precedence over subsequent enactments. I am looking at this matter perhaps with a layman's eyes, but this would seem to me to run counter to the views we have been hearing to-day, Therefore, in order to make the position abundantly clear, we have tabled an Amendment which again, like such Amendments, may be defective, but which to me, as a layman, and indeed to those of my legal friends who have advised me on this subject, seems to make it perfectly clear that any enactment which is subsequently passed and which clearly shows that it overrides a Community obligation shall prevail. Therefore the subsection would read: …any enactment passed or to be passed…shall unless the contrary appears be construed and have effect subject to the foregoing provisions of this section ". That means that the enactment clearly appears to run counter, and that Parliament in fact intended it to run counter.

When I first studied this Amendment I thought—as I said, I was misled in my ignorance by the statement which I quoted of the noble and learned Lord—bearing in mind always the sovereignty of Parliament, that any subsequent Act might have to disavow deliberately the provisions of Clause 2 in order to take precedence over Community obligations. It seemed to be undesirable that Parliament should always have to provide for that. Let me say that I accept that such a step may be exceptional and that I fully acknowledge the political implications, but the insertion of the words "unless the contrary appears" seems to me, and to those who have advised me, to make crystal clear the supremacy of Parliament in this matter if it deliberately wills something. If it is clear that the contrary appears and that it is not merely a matter of arguing over construction, then Parliament will still remain able to legislate as it will. As I understand it, the position—and the position which we all seek—is that Parliament should retain this supremacy, because it is in accordance with our traditions. Also it is part of the whole basis of the Constitution that one Government cannot bind another, although what I have quoted from the earlier speech suggests that in fact this Bill has a binding effect of that kind.

In the Blackburn case to which reference has been made, the noble and learned Lord, Lord Denning, ended up, when speaking on this question of legal sovereignty and after quoting Professor Wade who said that sovereignty is a political fact for which no purely legal authority can be constituted, by saying: That is true. We must wait to see what happens before we pronounce on sovereignty in the Common Market. I fully acknowledge, for reasons which in my opinion are perfectly apparent, that it was not at that moment for the Court to express an opinion and they gave their reasons why they should not do so at that moment. None the less, the statement that We must wait to see what happens before we pronounce on sovereignty in the Common Market ", although an impeccable statement and correct in every way, also contributes to the anxieties with regard to the supremacy of Parliament.

I suggest that the insertion of the words "unless the contrary appears" will make clear what I understand the Government have to some extent been saying, with a less certain voice than that of the noble and learned Lord, Lord Diplock. It may well be that the noble Viscount did not wish to express himself, because he did not want to anticipate what the courts might say in certain circumstances. But there has been a touch of doubt and—again, we may have misunderstood the noble and learned Lord the Lord Chancellor—a lack of absolute certainty that Parliament retains its supremacy and that if, for any reason, it deliberately passes a subsequent Bill which runs counter to our obligations under this Bill and under the Treaties into which we have entered, Parliament's will will prevail. Whether it should is an entirely different matter, and the consequence may be that we shall be in breach of a Treaty.

It is not inconceivable in certain circumstances that, through no fault of their own, countries may be in breach of Treaties. After all, most wars arise—and I am not foreseeing a war—because of a breach of a Treaty. There might be political developments of a kind which would mean that we should find ourselves in breach of a Treaty. None of us would wish to legislate on the basis that we should provide for such a possible breach, and that in entering Europe, for good or for ill, we do not enter with a full acceptance of the Treaty of Rome. Many of my noble friends do not like it, but I am sure they will accept, once we are in, that we have a binding Treaty. But circumstances could arise in which we wished to do something other than was provided for, either in the Treaties or, more especially, in some directly applicable regulations. Some figures were given by the noble Earl, Lord Lauderdale—and I voted for his Amendment—about the breaches which have already been committed by other countries. I do not know whether in certain circumstances, if there were a serious breach of obligations—and the Court of Luxembourg has no real powers of enforcement—we could be taken to the Hague Court. Presumably we could, and there are a number of external sanctions which could be applied, even if in fact they were not. I am not sure whether we can be taken to the Hague Court because, as I understand it, one must be willing to submit to its jurisdiction. But that is a matter into which perhaps I should not go further.

This is a simple Amendment which, if it is drafted satisfactorily, makes the future position clear. Any fresh enactment which Parliament may pass will be effective—and will be effective in the courts—provided that its intention is clear and that it is not just a question of trying to assimilate different constructions. I shall listen with interest to the answers which we shall receive, but I believe this to be quite fundamental to the position which I hope we, as a Parliament, are taking up. I beg to move.


I am afraid that I cannot have made myself very clear last night on an Amendment which, in some ways, had a very similar effect. But to some extent, at any rate, unless I am mistaken, my task has been rendered much more easy by the noble and learned Lord, Lord Diplock, in a speech of which I am afraid I heard only the concluding paragraphs just before the House resumed to take the Industry Bill. As I understand it, the noble and learned Lord was really saying this—and this is what I was trying to say last night. There is a doctrine in our Constitution by which Parliament is supreme. In the sense that it can always repeal existing legislation, it can expressly amend existing legislation; and if it does so the courts will give effect to the repeal (and they must give effect to the repeal however extraordinary or bizarre the result) and they must give effect to the amendment. What I have been trying to say—and I said it in this Parliament first in respect of the Bill of Rights of the noble Earl, Lord Arran; I said it on both occasions when we discussed this Bill and I said it last night, I thought absolutely plainly, and I quoted the Solicitor General to the same effect—is that this is a fundamental doctrine of our Constitution, as clearly fundamental to the whole of it as any term of a written constitution elsewhere.

As I understand it, what the noble and learned Lord, Lord Diplock, was saying was this—and it was exactly what I was trying to say and as we have always said—that if Parliament purported to amend the subsection that we are now discussing (subsection (4) of Clause 2 of the Bill or of the Act, as it will be) or to repeal it, the courts would have to give effect to the express Amendment or repeal. If it were a minor matter it would cause us international difficulties, it would be a breach of our international obligations; if it were a major matter it would, in effect, terminate our membership of the Common Market, because we cannot amend this subsection without acting flagrantly in defiance of the obligations of the Common Market. None the less, the courts, if that were to happen, would be bound to give effect to our breach of obligation, because that is the position they hold in relation to Parliament and the Constitution.

But side by side with that are two other factors of which the more important for this purpose is that we are under an obligation, when we enter the Community, to ensure that directly applicable law prevails over our ordinary law. This subsection, unamended, is designed to give effect to that Community obligation so far as, under our Constitution, it is logically possible to do so. What the Amendment would in effect do would be precisely to contemplate that Acts of Parliament could be passed while this subsection was on the Statute Book which defied our Community obligations; in other words, if this Amendment were passed we could not accede to the Treaty. That is the vice of it, and that is why I asked the noble Lord not to pursue the matter to a Division. Obviously, if we took this subsection off the Statute Book by repealing it, the consequences contemplated by the noble and learned Lord would follow. But one thing we cannot do, either honourably or legally, is to insert in our Accession Treaty something which is inconsistent with our obligations when we accede. This is what the Amendment would do. I have tried to explain the matter lucidly. It is for this reason that we say that, far from clarifying the matter, the Amendment will throw the whole concept of adherence to the Community into the melting pot.


Could my noble and learned friend explain something to me? In the event of our breaching the Treaty in such a way as the French and Germans have done over currency regulations and so on, or in the way that had we been in the Common Market we should have done by floating the pound, could the courts then force Her Majesty's Government's Ministers to change their minds?


That is not a question which arises under this Amendment. Nor could I give a positive answer to each one of the subordinate questions that my noble friend has put. Obviously, if we break our obligations under the Treaty the Treaty itself provides machinery by way of decisions of Community institutions whereby we should be ordered to remedy the breach. Before one lost one's membership at any rate, one would be in the face of a series of orders, either by the Commission or by the Luxembourg Court or the Council of Ministers, to remedy the breach. If we refused to do so, then sooner or later, if we went on refusing over enough subjects, obviously our membership of the Community would be in question. What the situation is about the French and the Germans I am certainly not prepared to say without notice—and probably not even with notice. But that is what could happen to us.

Membership of the Community involves acceptance, among other things, of the two arms of Community law which we have been discussing throughout most of to-day: first, the acceptance into our system of directly applicable law; and, secondly, the acceptance of an obligation to enact the indirectly applicable law by our own domestic legislation. You cannot remain a member of the club indefinitely if you disregard its obligations. Just how many obligations you must disregard before you lose your membership is largely a question for the members.

So far as this Amendment is concerned, the point I am trying to make is a logical one. It would be impossible to devise an Act of Parliament (and this is both the beauty and the limitation of our Constitution), at any rate an Act of Parliament of this kind, which destroyed the sovereignty of Parliament, because theoretically the Act which destroyed it could always subsequently be repealed or amended by a subsequent Parliament. That doctrine remains absolutely unaffected by anything in the Act. Equally, it is our unqualified obligation to provide, so far as we can, both that directly applicable law shall be directly applicable and that where conflict arises between our domestic system and the directly applicable law the Community law shall prevail. That we have done in this subsection. What we cannot do in this subsection, not only because it would be dishonourable but because it would be impossible, would be to provide consistently with our joining the Community that we had a means of escape so long as this subsection remained on the Statute Book. And that is what I conceive this Amendment to do.


I do not find it easy in a matter in which I am so inexpert to see what difficulty there can be in providing (in an admittedly difficult clause) to meet the situation envisaged by us and the situation envisaged in the speeches of the noble Viscount, Lord Colville of Culross, and the noble and learned Lord, Lord Diplock. It may be that I have misunderstood them. If I may say so to the noble and learned Lord on the Woolsack, I do not think it is a question of honour. I fully accept what he says: that you cannot sign a Treaty, and ratify and implement it, with the intention of breaking it. The example that the noble Earl, Lord Onslow, gave us was of circumstances in which, rightly or wrongly, we could be in breach of the Treaty (in the same way as a number of the countries of the Community were themselves in breach of the Treaty) and where we should be prevented under this law from taking such action as a Government supported by Parliament may be forced to take.

I want to choose my words very carefully. I am not advocating breaching a Treaty; I am looking at the practical circumstances that might confront a future Government. It is clear (and I repeat it) that if we go in, as we look like going in, we should go in wholeheartedly and we must accept the consequences until such time as, for some reason or another, we amend or repeal this Act and possibly find ourselves in breach of the Treaty. I think that that is an unlikely event, but, none the less, certain circumstances could arise. I cannot see why it should be impossible for us honestly to put into the Bill the words, "unless the contrary appears"— if it is satisfactory in its drafting—which only states what I conceive to be the precise position, and only states what we know to be the position, anyway. It may be that I could be persuaded otherwise, but I have put this Amendment forward because I think it would, in any case, be a dishonourable act to appear to deceive our future partners and not to state explicitly in the relevant Parliamentary instrument what we maintain to be the Parliamentary position anyway.

It may be argued that it is superfluous to do so, but I do not think that it is dishonourable to do so. I would still urge that this is something that helps to clarify the position. Before we finally leave this perhaps I could ask the help of the noble and learned Lord about whether I am right in the construction that I am putting on what I say is the effect of, "unless the contrary appears ". It may well be that the Amendment is in some way defective; I do not know. If it achieves what I seek to achieve I shall still need a bit of convincing that it is a mistake to make the position clear in this way. But I should like to know whether it achieves that purpose, as I would not wish to take this Amendment any further if it were defective.

8.32 p.m.


I rise to seek clarification. On several occasions in our debates the noble and learned Lord the Lord Chancellor has made the assertion—and I think when I state it I shall be within the recollection of the Committee—that we go into the Common Market, having accepted the Treaty of Accession and all the obligations associated with our entry. We are expected to obey the rules and accept all the obligations and the, rights et cetera. We are expected to obey them, and I accept that. So far, so good. But having said that, the noble and learned Lord the Lord Chancellor, again in repetition, has asserted that Parliament, your Lordships' House and the other place, at any rate to some extent retain control; in other words, there is political control.

I am bound to say that I cannot reconcile the irreconcilable. If we are to accept all the implications there is no redress if something inimical to the national interest, that is our interest, occurs. It is impossible for me to specify what that would be. Perhaps when we discuss the next Amendment it would be possible to specify one aspect that occurs to me, but I cannot do that on this Amendment. But if something inimical occurs which, in the opinion of your Lordships' House—if not in the opinion of the Government—and in the opinion of the other place—and again not in the opinion of the Government—is inimical to the national interest, where do we exercise the measure of Parliamentary control? Where is the redress? I cannot see it. Perhaps the noble and learned Lord the Lord Chancellor will explain it.

8.35 p.m.


If I may, I would rather address myself directly to the question which the noble Lord the Leader of the Opposition asked. I apologise to the noble Lord if I have failed to make myself plain, precisely because I doubt whether I can make myself plainer. I have done my best and it seems that I have failed. I thought that the noble and learned Lord on the Cross-Benches was doing it before the House resumed at seven o'clock, but evidently he has failed. If I may put it in a sentence, we are under an obligation by this pre-accession Statute to put our law, so far as it is logically possible to do it, in a position where directly applicable Community law prevails over ordinary law. The clause as unamended does that thing; that is to say, it makes this rule apply in so far as it is logically possible for a British Parliament to do that. But the clause, as amended, would not achieve that purpose because it directly contemplates that, with that clause still on the Statute Book and unamended, we could do something different.

It remains true, it has always been true and is what I have always said, that because of the rules to which the noble and learned Lord. Lord Gardiner, referred in May, 1967, and to which the noble and learned Lord, Lord Diplock, referred just before seven o'clock this evening and to which I have referred—as I think the noble Lord. Lord Shinwell, justly said, repetitiously almost, because I must now have said it very many times during the course of these proceedings—it is not possible to do it absolutely because Parliament remains supreme. If we were to put in this Amendment we could not accede to the Treaty. We can accede to it without the Amendment. What is more, there is nothing either dishonourable or obscure in our doing so because however benighted our European partners may be, they have had an adequate instruction into the peculiarities of our Constitution which puts us in this position. We cannot prevent a subsequent Parliament repealing or amending this clause, but we can enact it in a form which complies with our Community obligations. That we can do only if it is not amended.


I must accept what the noble and learned Lord has said. The purpose of this Amendment was specific and limited, and I am sure the noble and learned Lord accepts that. It was not intended to make accession impossible, though no doubt there are Amendments one could move deliberately to do that. That was certainly not my intention. If one were going to do it, one should do it explicitly and not by a piece of drafting designed to achieve a different purpose. The noble and learned Lord has stated categorically that if this additional phrase were inserted into this clause it would make it impossible for us to accede to the European Community. I should like to study very carefully what he has had to say. These points and similar points will come up on later Amendments, particularly one that my noble and learned friend Lord Stow Hill proposes to move, and we shall want to explore this matter further.

I fully accept that the noble and learned Lord has been expressing himself with firmness and clarity and I did understand what he was saying. The particular point I was asking about was whether this Amendment was effective. I gather from what he has said that it is so effective that it would make accession impossible. As I say, there may be those who would welcome that and I may regret that I am not prepared to go that far. anyway not to-day. But I am still unhappy about the position where there is a breach by other countries and where, although it would be contrary to our Treaty obligations, we found ourselves in a situation such as the noble Earl, Lord Onslow, has mentioned, where we found others breaching the Treaty.

I believe—perhaps this sounds unduly Chauvinistic—that the British are sometimes at a disadvantage in that, on the whole, we seek to honour our obligations. In this matter this Bill could put us at a disadvantage. Having consulted my noble friends I am rather inclined not to take this Amendment to a Division, but I think I shall have to let the Committee negative it in case any noble Lord wishes to vote.

On Question, Amendment negatived.

8.41 p.m.

On Question. Whether Clause 2 shall stand part of the Bill?


It would be wrong to allow this clause to go through without some general comment. No matter how the words of the clause are dressed up, re-arranged, explained or excused, the fact is that the clause will remove the initiative and the execution of lawmaking to authorities outside the United Kingdom. That is its net effect and no one can disguise that fact. It seems to me that the tragedy of this operation is that it is taking place at a time when Her Majesty's Government are appealing outside for respect for the law. They ask that the law of the land be obeyed. But this clause and the way in which its provisions will be implemented is a recipe for lawlessness. Quite literally that is so. The noble Earl, Lord Lauderdale, claimed that one-quarter of the regulations issued from Brussels were not now observed by current member-States. I do not have in mind so much the breaking of Community laws by member-States; I think the danger is greater even than that. The real danger is that respect for law among the general mass of the people will be lessened.

Some of us have spent a lifetime in a social democratic Party and we have always argued that the remedy for economic injustice is the capture of political power. We have always preached and argued that the people of the country should have trust in the powers and authority of this Parliament. If we could get control here, then we could remedy the economic injustices from which many of the people suffered and still suffer. But that trust has diminished and is diminishing, and it ought not to diminish any further. As I have said, this Bill is a recipe for lessening the respect which people outside have for Parliament. We have tried to write into this clause certain safeguards which might lead to retention of that trust and stop that diminishing process, but each and every one of them has been thrown out. In no case has there been any real attempt to put heads together to see whether we could meet the fears which undoubtedly exist and to move towards an improved form of words. The most constructive discussion was on subsection (4) of this clause, but of course that was not an Amendment which would have been an improvement. So we shall have this situation in which decision-making about important day-to-day matters—the price of our bread and butter, the value of our money, the location of our industry, the movement of capital—will move further away from the persons affected.

We are sometimes accused of being old-fashioned when we put up arguments against this Community concept. We are told that modern thought and practice are towards a wider unit, but the truth is that the really up-to-date, modern thought and hope are for closer participation, more involvement, bringing decision-making closer to the persons actually affected. The whole of that process will be reversed by the legislation we are now passing, and particularly by Clause 2. Noble and learned Lords opposite have argued with the utmost confidence that this Bill, and in particular this clause, need not be improved in any way. They may have convinced themselves, but my really deep belief remains that they have not convinced the majority of the people of our nation. They must not be surprised if outside this place disapproval will be shown not in Division Lobbies but in the ways which are open to the people. It is the Bernie Steers of this country who will benefit from the passing of this clause. We are really giving to them arguments which will be dangerous in their mouths. I should like to see, even at this late hour, some attempt to assure our people that we can promise that Parliament's control and genuine sovereignty will remain, and that we really will be in a position to try to put right the economic ills of our own country. As this clause now stands, it will not be possible to give that assurance.

8.47 p.m.


There are several reasons for being a participant in debates when legislation comes before your Lordships' House and on previous occasions when legislation has come before another place. One is that if one holds strong convictions about the desirability of promoting a particular piece of legislation one should support it wholeheartedly. The other is that if one detects defects in the proposed legislation one should oppose it outright and in a forthright fashion or—speaking as an old Parliamentary hand—by indulging in criticism even if that criticism is sometimes described as trivial and niggling.

I will speak briefly, but I thought I ought to speak as I feel strongly about this matter. I find myself in a rather different position from that of many of my noble friends. During the course of debates I have declared that I am an unrepentant opponent of entry into the Common Market. I need not go into the reasons now; these matters have been discussed during the Second Reading debate and so far during the Committee stage. When it comes to the Third Reading and we can talk about what is in the legislation perhaps it will be possible to add to what I have already said. Being something of a logician, if nothing else, I accept that if we decide to enter the Common Market we must do so fully, exclusively and wholeheartedly. It can be no other way. That has been my position since the outset of our debates—indeed from the time when the first pronouncement was made in another place. If we join the club we must be a member of it. One cannot join a club and immediately proceed to indulge in breaches of the rules. That would be not only improper but undesirable, and in a sense it would be an act of treachery. You either go in with the intention of promoting beneficially every aspect of life associated with the club, or in this instance the Community, or you stay out. That has been my position all along. I may well be asked: then why indulge in criticism? It is because there is this other reason for taking part in a debate. Even if one is unable, having pressed one's point of view, to obtain a favourable response one must justify one's existence, so to speak. One cannot come to your Lordships' House and remain silent throughout the whole of these debates and not express an opinion just because one has expressed one's position of being entirely opposed to entry. Of course, it might be thought: why do anything more? One has to recognise one's responsibility as a Member of your Lordships' House; one is bound to take part in debate and, if one detects defects here and there to seek to expose them. That has been my position.

But there is something more, and it is all I will say on this occasion. In this connection I will not use the word "improper"; it would not be relevant to the Parliamentary situation because all kinds of statements are made in the course of debates. That has been going on for a long time, and no doubt we shall have further evidence of it in the future, not only in your Lordships' House but in the other place. But, after all, although it is the duty of a Government to promote their legislation and carry it through with all the influence and power that they command, on the other hand it is the duty of an Opposition to oppose if they detect defects in the proposed legislation.

There is another aspect. It is also the duty of a Government, of whatever political complexion, to appreciate the existence of an Opposition. It is part of our Parliamentary procedure, of what is called the Constitution. And here, if I may digress for a moment, there is no great authority on these matters. I have occasionally read documents, taken part in discussions and entered into conversation, sometimes with legal pundits, but at any rate with people of Parliamentary experience over many years, and it seems to me that if the Government stand firm, unyielding—I use this expression and hope it will not be regarded as offensive; are perverse, which is much worse than being stubborn and obstinate—and will not give way an inch it can do greater injury to our Parliamentary institutions than, if I may say so, even the hullabaloo that goes on in another place—I hope this will not be regarded as a breach of privilege—to which reference has been made in the Press.

There was a Sunday newspaper (I am not going to furnish it with a gratuitous advertisement) which came to the conclusion that Parliament was on the way out. It happens sometimes not only with the Press but with people and personalities, important and unimportant, that if they do not get their own way they say, We have reached the end of the road." This Sunday newspaper expressed the view: "Parliament is almost dead. It ought to disappear." What is to take its place they are unable to say, unless perhaps they conceive the extraordinary notion that the editor of that newspaper could run the show. That is not a fantastic idea. In the past we have had newspaper proprietors who thought they could run the show, and if they had not been held in check they would have run the show. However, I do not want to delve too much into political history. That is the position.

My complaint is not that the Government are standing firm—they want to push this legislation through; they believe that this is the only thing that will help the country, although I take a different view—but that they must recognise that the Opposition have rights. They have refused, if I may say so—I was about to use the familiar expression "with respect", but I will not do that because it may be regarded as humbug—even to recognise the existence of an Opposition. Yet over and over again in the course of the debates in the other place it was said—and this has appeared in the Press on several occasions, even in the reputable quality papers—that it was possible in your Lordships' House to improve the Bill.

I do not suggest that I have been constructive. If I said that I have been constructive it would be sheer hypocrisy. I have not attempted to be constructive in the course of this Bill. If your Lordships like, I have tried to be destructive. I have not been very effective. There have been occasions when I have been much more effective in the sphere of destruction than I have in the debates in your Lordships' House. But my noble friends have been constructive. My noble friend Lord Shackleton, the Leader of the Opposition, has been particularly constructive. He is a pro-Common Marketeer. He is entitled to his convictions, and I appreciate his sincerity and integrity. He has been propounding ideas which he thinks should be embodied in this legislation and which are intended to be constructive. What has happened? If I may use a vulgar expression, he has simply got the brush-off. He has been pleading much more effectively than I can plead but he has got the brush-off. As for my noble friend Lord Beswick, who has made some excellent speeches in our debates, he has been the object of cynicism on the part of the noble and learned Lord the Lord Chancellor. I have detected that.

This is not the way to run Parliament. Nor does it—and with these words I conclude—envisage hope for the future of our country and our Parliamentary institutions. It is never too late to mend. Perhaps before the conclusion of our debates it might be possible for those on the Government Benches to detect the wholesome effort, the honest effort, on the part of some of my noble friends to improve the Bill; at any rate not to reject some of the Amendments in an outright fashion but to give consideration to some of the ideas that have been adduced, in the hope that on the Report stage they will come to a different conclusion and yield a little. If not, I see very little hope for our Parliamentary institutions. I have said this because I think it is the proper thing to say. Perhaps I have said it in extenuation of my own conduct and in self-justification.


I shall not take up much of your Lordships' time. It will be generally accepted that whoever wins the argument in Parliament, irrespective of the voting, wins it at the street corners weeks or months later. The noble Lord, Lord Beswick, was so right, I thought. when he said that the question at issue in Clause 2, if one pursues it properly and deeply, is one of respect for the Constitution, respect for Parliament, and therefore respect for law. I submit that there is nothing profane in saying that. In Clause 2 we have been looking at the Executive in relation to Parliament. Therefore, if we are prudent, we surely shall have had in mind popular trust in Parliament, popular doubts about the Executive, proper Parliamentary doubts about the Executive and a proper Parliamentary zest to quiz and query the Executive and, if necessary, chase them from power. The control of the Executive has really been the issue. I have lost count, since the issue of Hansard dealing with Clause 1 is not available, of the unanswered questions on that Clause. I forbear to enumerate the unanswered questions which have been posed on Clause 2. But if my noble friends on the Front Bench stonewall they might ask themselves what is the story told them by way of reply in the Division Lobbies.

There has been a noticeable shrinkage in the Government vote and the Government majority. The number of noble Lords taking the Tory Whip is, of course, not officially divulged. Anyone can guess, and my own guess is somewhere around 370, which is about equal to the Government majority in October, when 451 voted for—and had I not been misguided it would have been 450—with 58 against. That represented a Government majority of 393, including many Liberals, Cross-Benchers and Socialists. Whatever "whipping" might or might not have been issued for Second Reading, the Tory vote shrank sharply from 451 on the general principle to no more than 189; in other words, a loss of 262 votes. The majority fell from 393 to 170—a loss of 223 between the vote in October and the vote on Second Reading. If the Government boasted—and they did—of the vote on the principle last October we are at least entitled to contrast it with the vote on Second Reading.

Then we are entitled to compare that with what has happened up till now. Word went round and rumours went round about the way in which the Committee was to be handled, and doubts and abstentions followed. This, unless I am very wrong in my journalistic intuition, occurred not without the intervention of some urgent Whips' telephone calls. But be that as it may, the Government's best vote on Committee so far has been 154 on Clause 1 and their best majority so far has been on Clause 2–127 just now on an Amendment of mine. But this majority shrank to only 60 last night and the total Tory vote last night was only 82. What happened to those noble Lords on the Tory side who voted in October and did not vote last night? This discrepancy was of no fewer than 390. What happened to those who were in favour on Second Reading but who did not vote now, giving a discrepancy of nearly 130?

The fact, which may be disagreeable but it is only fair to bring it out frankly, is that your Lordships' House has been issuing this message to the Government in its own way, and no matter what "whipping", pressure or encouragement there may have been, a number equal to the whole Tory Whip (so far as one can guess what that is) have in fact abstained by staying away altogether. This has happened while the protestants against the whole operation have been fairly constant at around 30. Governments are bad; Governments are known to be bad: all Governments are bad and are known to be bad. The best Government is the least Government, and surely this lesson must penetrate the ears of the Executive. Britain can be governed, yes; Britain can be led, yes; Britain can be bulldozed, never.



9.5 p.m.


I should like to remind the Committee that what we are discussing is the Question, Whether Clause 2 stand part, and therefore I do not propose to enter into my noble friend's fantastical imaginations beyond saying that if he really believes that there is not as strong an opinion in favour of this Bill and of our accession in this House as there ever was, his opinion differs profoundly from mine. It may be that a number of noble Lords have felt so convinced that our majority was secure that they did not feel it necessary to discommode themselves by attending, but it certainly was not because they showed the slightest sympathy with my noble friend's attitude, certainly on this side of the House.

I turn now to the other two speakers to whom we have listened. It is evident that we are not going to persuade one another and I therefore will say, as quietly and patiently as I may, what our attitude on this matter is. This Bill does all, but no more than all, that it is necessary to do in order to render possible our accession to the European Communities: and Clause 2 perhaps, apart from Clause 1 (but with Clause 1) is essentially the heart of the Bill. We have had a large number of Amendments. I do not want to criticise those who have put them forward, but from our point of view they have all been basically attempts to "eat your cake and have it". I will explain exactly what I mean by that. Of course it is possible for Parliament to exercise its undoubted sovereignty in a purely autarchic way, and that during the speech of the noble Lord, Lord Beswick, in spite of numerous protestations of internationalism, is precisely what I think he was basically advocating. Parliament can exercise its undoubted sovereignty in an autarchic way. Some of us are old enough to remember the chaos which existed before the war and to remember also what autarchy meant. The currencies of independent sovereign States played up and down against each other in a piratical fashion; there were enormous figures of unemployed, together with widespread poverty ending in international disaster. Now that is not the kind of way in which I personally would want Parliament to exercise its authority.

For the first time in my lifetime a new and imaginative idea has emerged and that is the idea of a Common Market which, at least in the economic sphere, will enable independent Parliaments to exercise their authority in a non-autarchic way. We have decided to accede at a point of time I think about twenty years after the inception of the first of the Communities, 12 years after the inception of the main Community. It operates in a particular way. Personally, I think that the conception operates probably in the minimal way necessary to give it effect. The way in which it is necessary to give it effect is that you have a Market and not a mere Free Trade Association, because it is necessary to have common rules centrally applied in order to prevent the piratical activities of individual Governments who want to be members, but at the same time to pursue their own individual interests. The philosophy underlying that is that if they operate their sovereignty in this way the interests of their peoples are better served. Obviously there are swings; obviously there are roundabouts; but if it means going back—as logically I think the noble Lord, Lord Beswick, would lead you to go back—to the awful situation that I remember in my young manhood, I can only say that it is not for me and I think it is not for most Members in this House.

It is alleged that we have been un-reasonable in our resistance to numerous Amendments. If we had seen an Amendment which we thought we could accept and still be able, honourably, to make our accession in January, it might have been different. But basically the Amendments which have been proposed to this clause have been Amendments in which noble Lords (and I regret to say this) have deluded themselves into thinking that it was possible to have it both ways: to have the advantages of autarchy, yet to join a Common Market. They were not improvements to the Bill. I daresay that they were intended to be improvements to the Bill. But they were ways of rendering the Bill unworkable and accession impossible. This was our belief. The noble Lord, Lord Beswick, is entitled to his opinion. He stated it at length. I am now stating mine as I am entitled to do.


Would the noble Lord allow me to interrupt? Would he say that the very first Amendment moved was designed to make the Bill unworkable?


I cannot remember which the first Amendment was and therefore I would not commit myself to that. What I will commit myself to is that I cannot remember an Amendment to Clause 2 which would not have either rendered accession impossible, or the Bill unworkable. It was on that basis that we have argued them out.

We now come to the situation that Clause 2 is attacked as somehow under-mining the rule of law. I was wholly unable to understand what Bernie Steer had to do with Clause 2 of the European Communities Bill. It was apparent to the noble Lord, Lord Beswick, but not to me. The truth is that there are two ways of viewing law; you can view a narrow law operating over a small and narrow community. No doubt that is very agreeable; it is a form of paro-chialism. Its limitation is that if you try to do it, and your economic and social base is too small, the interests of your community will not thereby be served. We believe that the base of a Community of 10 European nations is more likely to succeed for the people of this country than the base of one individual Community, or 10 individual Communities operating in competition with one another and being fairly free to operate their own economic systems to the detriment of one another's interest. That is the basic difference between us. If you believe the former it is simply self-delusion to believe

Resolved in the affirmative, and Clause 2 agreed to accordingly.

that you can do without Clause 2 in an unamended form.

9.14 p. m.

On Question, Whether Clause 2 shall stand part of the Bill?

Their Lordships divided: Contents, 131: Not-Contents, 23.

Aberdare, L. Gainford, L. Orr-Ewing, L.
Abinger, L. Goschen, V. Penrhyn, L.
Ailwyn, L. Gowrie, E. Perth, E.
Albemarle, E. Gridley, L. Polwarth, L.
Amory, V. Grimston of Westbury, L. Poole, L.
Astor of Hever, L. Hailes, L. Rankeillour, L.
Balerno, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Reay, L.
Balfour, E. Redmayne, L.
Belhaven and Stenton, L. Hanworth, V. Reigate, L.
Belstead, L. Harcourt, V. Rhyl, L.
Berkeley, Bs. Harvey of Prestbury, L. Robbins, L.
Bessborough, E. Hastings, L. Rothermere, V.
Blake, L. Hawke, L. Ruthven of Freeland, Ly.
Brabazon of Tara, L. Hemingford, L. St. Just, L.
Brentford, V. Henley, L. Saint Oswald, L.
Brooke of Cumnor, L. Hewlett, L. Sandford, L.
Brooke of Ystradfellte, Bs. Hives, L. Seear, Bs.
Burnham, L. Hood, V. Selborne, E.
Coleraine, L. Hylton, L. Selkirk, E.
Colville of Culross, V. Inchyra, L. Sempill, Ly.
Cork and Orrery, E. Jellicoe, E. (L. Privy Seal.) Shaftesbury, E.
Cottesloe, L. Kemsley, V. Somerleyton, L.
Cowley, E. Kilmany, L. Stonehaven, V.
Craigavon, V. Limerick, E. Stradbroke, E.
Crathorne, L. Lothian, M. Strathclyde, L.
Croft, L. Macleod of Borve, Bs. Stratheden and Campbell, L.
Cullen of Ashbourne, L, Macpherson of Drumochter, L. Swansea, L.
Daventry, V. Mancroft, L. Swaythling, L.
Davidson, V. Massereene and Ferrard, V. Tanlaw, L.
De L'Isle, V. May, L. Terrington, L.
Denham, L. [Teller.] Merrivale, L. Teviot, L.
Derwent, L. Mersey, V. Thorneycroft, L.
Digby, L. Middleton, L. Trefgarne, L.
Drogheda, E. Mills, V. Tweedsmuir, L.
Drumalbyn, L. Milverton, L. Tweeedsmuir of Belhelvie, Bs.
Dundee, E. Monk Bretton, L. Vernon, L.
Eccles, V. Mountevans, L. Vivian, L.
Elles, Bs. Mowbray and Stourton, L. Wakefield of Kendal, L.
Elliot of Harwood, Bs. Moyne, L. [Teller.] Waldegrave, E.
Emmet of Amberley, Bs. Netherthorpe, L. Ward of Witley, V.
Essex, E. Newall, L. Wolverton, L.
Falmouth, V. Northchurch, Bs. Wynford, L.
Ferrers, E. Nugent of Guildford, L. Yarborough, E.
Fisher, L. Onslow, E. Young, Bs.
Bernstein, L. Hoy, L. Shinwell, L.
Beswick, L. Lauderdale, E. Strabolgi, L. [Teller.]
Blyton, L. Maelor, L. Taylor of Mansfield, L.
Davies of Leek, L. Milner of Leeds, L. [Teller.] Watkins, L.
Gray, L. Nunburnholme, L. Wells-Pestell, L.
Greenwood of Rossendale, L. Phillips, Bs. White, Bs.
Heycock, L. Rhodes, L. Wynne-Jones, L.
Hirshfield, L. Rusholme, L.

9.24 p. m.

LORD STOW HILL moved Amendment No. 44:

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

  1. (a) to decline its assent to the imposition of any new or additional financial obligation on any of Her Majesty's subjects, or
  2. (b) to make such provision as may seem to be necessary or desirable to safeguard the external or internal security of the United Kingdom, or
  3. (c) to take such steps as may seem necessary or desirable to protect vital national interests of or to prevent the erosion of the essential national sovereignty of the United Kingdom being removed lessened or restricted or their exercise in any way inhibited."

The noble and learned Lord said: I move Amendment No. 44, which is designed to place before the Committee for consideration a new and different proposal relating to Parliamentary control. I think I can move the Amendment the more shortly for the reason that we have already traversed a number of the arguments which are relevant to this proposal. We have in our debates drawn, in my opinion quite rightly, a sharp distinction between the concept of Parliamentary supremacy and that of Parliamentary control. May I give, in order to pass from it, my own view with regard to Parliamentary supremacy?

Last night my noble friend Lord Beswick, on Amendment No. 28, raised the broad question whether, once we have enacted this particular Bill into law, we can ever draw back. He raised the question as to whether it would still be open to us to repeal the Act (as this Bill would then be) and to pull back from the position in which the Act would place us. I ventured to cite what I thought was most illuminating language from a judgment delivered by the noble and learned Lord, Lord Denning, in a case of Blackburn v. The Attorney General. Lord Denning pointed out that while we can theoretically repeal any Act—nothing can stop Parliament from repealing any Act—in fact when one is speaking about an Act of this character the possibility of repeal is only a theoretic one. The noble and learned Lord drew a comparison with Section 4 of the Statute of Westminster and other Acts giving independence to Commonwealth countries. The conclusion he drew was that once we had ceded sovereignty it could never be recalled. That is a position which I personally accept. I think it should be the case. I regard the situation in which we now find ourselves as one on which we ought to accept the fullest implications. From my point of view we certainly do, to a not insubstantial degree, cede something of our Parliamentary sovereignty—and so we should. Without that, in my opinion at any rate, it would be quite impossible to join the Community.

When we were discussing the Question, Whether Clause 2 should stand part of the Bill, the noble and learned Lord the Lord Chancellor voiced his hopes of the Community: I share those hopes; I think we are in the presence of a stupendous historical event, and I believe that the step we are now taking, irrevocable as I believe it is, can lead to enormous betterment in the affairs of mankind. Theoretically, of course—I hope it will never be practically—strains could develop within the Community which would mean that in some future period it might spring apart and be destroyed. Theoretically, the big joint stock banks may at some future date find it impossible to meet a cheque for £5. If they do, our financial situation will be so chaotic that we might as well reconcile ourselves to a period of disaster. Similarly, in my opinion, if such strains should develop as would lead to the disruption of the Community we would again be in a period of major catastrophe; the pre-war disorders and all that led to the Second World War might face us again.

So I start my argument on this particular proposal by saying outright that certainly I think we have ceded our supremacy to a not inconsiderable extent; we have ceded it for good and all (or we shall have done so when we enter the Community on January 1 of next year) and I accept it. I do not complain: I think we are bound to do it and I think we are right to do it. The corollary of that view—if that view is right—is, I hope I may say, expressed in the Amendment which I commend to your Lordships for consideration. If one accepts that we shall have fully and finally entered the Community, with all that that involves in the matter of cession of Parliamentary sovereignty, does not the converse of the argument become the more compelling: that it is desirable that some sort of safety valve should be created—a safety valve which would prevent this country from being compelled to go too far against what it regards as its absolutely vital national interests, as the result of some turn of events which probably we cannot now foresee? It is difficult to predict the course of history. One does not know how human affairs may develop.

I say at once that it is, in the circumstances as I envisage them, extremely unlikely that any Community right or obligation—as I think they are formulated and result from the incorporation of directly applicable law as part of our own law—would be likely to have the effect of impelling this country to go too far; in other words, of driving it into a situation in which it genuinely thought that its essential national sovereignty and interests were in a real sense imperilled. I regard that as a situation which is most unlikely to occur.

If one could foresee the course of events with complete accuracy one could say "Yea" or "Nay" to the question whether a situation of that sort will occur. It is not given to our understanding to peer into the future and read so certainly the march of events over the years. Therefore I and those associated with me in the preparation of this Amendment have sought in paragraphs (a), (b) and (c) to define those situations which in our submission might impinge directly on what could be properly regarded as those things which are essential for us to preserve and decide for ourselves. Paragraph (c) uses the phrases "vital national interests "and" essential national sovereignty". They are borrowed from the White Paper which was issued in 1971, and I hope that your Lordships will regard them as satisfactory phrases. We link with them the words in paragraph (b): .… to safeguard the external or internal security of the United Kingdom. That follows closely the concept embodied in paragraph (c). In paragraph (a) we seek to preserve what I would have thought was something very deeply ingrained in our Constitution, namely, the right of Parliament to refuse its consent to the imposition of what I might loosely call "taxes".

To ring round those three provisions, I hope I do not with gross inaccuracy describe them as matters pertaining to our essential national interest. The proposal proceeds to embody the concept that if both Houses of Parliament—I stress both Houses and not one— … resolve that such Community right, if given effect"— in the way I have described … would or might result directly or indirectly in the powers of Parliament as existing at the entry date"— being removed, lessened, restricted or their exercise in any way inhibited—this is spelled out in paragraph (c)—then the result would be that the particular Community right which otherwise would, as the result of the application of Clause 2, become part of our law, would be excluded.

That is the proposal and it goes to the question of Parliamentary control and not Parliamentary sovereignty. It is designed to reserve for Parliament the ultimate right to say in the event of both Houses being convinced, and being ready so to resolve, that we are being driven past what we can reasonably be expected to bear in the sense of having our national sovereignty eroded, that the Community legislation which is to be directly applicable will not become part of our law.

That is the proposal. I accept at once that such a joint Resolution would be very rare. I hope it would never have to be passed, but it certainly would be very rare. It could only arise in a case which one can loosely call a case of in extremis. What can be said against it? I am not suggesting there are not arguments against it. It would be impertinent to do so and I accept at once that there are. One is the argument that if we incorporate such a provision in our legislation we shall be infringing the obligations which we undertake by becoming members of the Community. If it is so, it is, if I may say so I hope not too inaccurately, a fairly serious charge. I use the word "fairly" because in the context in which I seek to incorporate this limitation of the Community rights application, it can hardly be said to be really very morally culpable. If all we do is to preserve the right of our own Parliament to prevent changes in our law which in the ultimate resort may seem to drive us too far beyond the point which nations can be expected to endure even if in so doing we breach our obligations in the Community, morally we can hardly be said to be culpable or in any substantial sense failing to implement the obligations which we have honourably undertaken.

What is the practical situation? Supposing such circumstances arose as in the opinion of both Houses of Parliament were likely to drive us up to and beyond that extreme point. Is it really likely that the Commission under the provisions of the Rome Treaty would take us before the European Court? I put it to the Committee for consideration that the practical implication is that there would be next to no likelihood of our actually being brought before the European Court. I would add that the substantial breach, if there is one, would not really be enacting this particular provision, if it commends itself to your Lordships. The breach would consist in the passing of the Resolution by both Houses of Parliament which would have the effect of preventing the relevant Community obligation becoming part of our law. That is the breach. If the situation actually arose obviously it would be a consideration prominent to Members of both Houses of Parliament that if they passed the Resolution they would, or might be, commiting a breach of the Treaty obligations. I submit to your Lordships that if in adopting this new clause we do breach our Treaty obligations, it is not a morally culpable breach but is a breach which is most unlikely in fact to result in our being brought before the European Court and told that we must not proceed on the lines which I propose. Furthermore—and I hope I do not tautologically emphasise this—the breach in fact and in substance would consist in the Resolution of both Houses and not in adopting this proposal as part of the Bill. As I have said, Parliament would have to consider before it resolved whether its Resolution in so resolving would constitute a breach or not.

May I travel away from our own situation for a moment. I would have thought that experience did show that when you had enormous agglomerations of people they may not really, in the long run, hold together over the years, over the decades, unless you do have something like the provision in the Security Council in the United Nations, where a decision cannot be taken, other than a procedural decision, except with the concurring votes of all the seven permanent members. I remember well when the Charter of the United Nations was being prepared in San Francisco, in I think 1946, when it emerged with that veto provision—as it is always called—that there was a great deal of disappointment about it. It was said, "If you have that veto you are stultifying the whole purpose of the Charter of the United Nations", and many people were distressed about it; and, as we know, it has been used in a way which frequently has disappointed those who believed greatly in the efficacy of the United Nations. I put it to your Lordships' consideration that it is not unlikely that without it the United Nations itself might have gradually disintegrated. We know the melancholy history of the decline of the League of Nations.

Whatever we do, I hope that when we enter into this Community of nations it will prosper and grow more powerful and more influential all over the world. It is said by many of your Lordships that we could be of much more utility to the Commonwealth countries and the countries which are backward and poorer than ourselves if we had the added security and strength which membership of the Community should bring to us over the years. That is the proposal. I hope your Lordships will not think it conflicts with the spirit of what we are honestly and honourably undertaking. I submit that it does not, for the reasons I have given. I submit that really one must have something, some kind of safety valve, and I deal here with Community rights, not decisions. In so far as decisions are concerned, we already have the Luxembourg Compromise, which has been found in practice to be necessary.

I conclude with this comment, made by a number of noble Lords and notably by the noble and learned Lord, and with which I agree: that it is no good looking to the dry letter of the law only; the great question with which we are confronted is how in practice this Community of 300 million people is going to develop. The law is the framework, but it is the spirit which will unite the aspirations of all these people and will give the answer to history of whether it has or has not succeeded. I pray that principle in aid in submitting to your Lordships that even if technically a proposal of this sort might involve some breach of some obligation, the spirit of the Community legislation is that it is not its purpose, not the intended result, to drive any nation too far. I do not speak from experience, but I should have thought that most of those who earnestly believed in the future of the Community would readily say, "No, we do not want to do that". I accept that it is most unlikely to happen. But this is a long-stop, a safety valve to preserve the position should such a situation, contrary to our expectations, ever arise. I beg to move.


We have just had an example of a classical, honest, and indeed impassioned supporter of British entry into the Common Market moving an Amendment. His speeches in the course of our debates on the Committee stage give the lie to the suggestion that has come from the Government Front Bench that the Amendments, generally speaking, were designed to weaken the legislation. To weaken the legislation is the furthest thing from my noble and learned friend's mind. But I can promise him this: that his Amendment will be rejected, as every one of his Amendments has been rejected. Those are the thanks he will get for seeking to improve the legislation.

I want to address myself to only one aspect of this Amendment. It is subsection (b), which reads as follows: to make such provision as may seem to be necessary or desirable to safeguard the external or internal security of the United Kingdom, I only wish to say a few words about the external security of the United Kingdom. One of the basic principles, indeed perhaps the most basic principle of national sovereignty, is the desire for security and the capacity to prevent aggression. It may be argued that there is nothing in the Treaty of Rome dealing with defence, dealing with external security; but at the same time it cannot be denied that many references have been made about defence becoming part of European unity. That indeed is the intention of the Government, as expressed in many speeches in the other place and elsewhere. Are we going to allow ourselves to be subordinated to any decision that may be taken in the Community which affects our capacity to prevent aggression, or to participate in any act—perhaps of a unified character, not necessarily with the countries of the Six, but perhaps with the United States or the Commonwealth—in order to secure ourselves against defeat? This is the question that we are entitled to ask.

If the Government say that it has nothing to do with the Treaty of Rome, and nothing to do with the Treaty of Accession, then I venture to warn them that in the future this matter of defence is bound to emerge, and we have no safeguard against any decision by any of the countries of the Six who may embroil us in a conflict. Take the case of France. Can we rely on France? France has contracted out of NATO. There is no evidence that France wishes to return to NATO. If, for example, there should be a conflict between East Germany and West Germany, or if there is a breakdown of the negotiations between Soviet Russia and West Germany and a conflict ensues, have we any guarantee that any of the countries of the Six will come to our aid? None whatever. Have we any assurance that we can act independently and resort to acts of defence against an aggressor, in view of our subordination to the Community in war, in economics, in industry and commerce, and indeed in all matters affecting national or municipal law? I think we are entitled to ask that question. For that reason, though I do not expect the Government will accept the Amendment, I think we ought to take notice of what my noble and learned friend has said, and the subsection contained in the Amendment.

9.47 p.m.


I hope that the Government are not going to stonewall this Amendment as they have stonewalled every other Amendment in the Bill. There are those of us on this side of the House who remember, when we were in Opposition, that we said that it was the duty of this House to pass Amendments back to the House of Commons. Is this to be only the case when the Labour Party is in office, or are we to pass Amendments back from this House on important Bills when the Conservative Party is in office too?

I must say that from my point of view I am very worried about this matter. It seems to me that the Government are trying to stonewall every one of the Amendments to the Bill. They are trying to resist every Amendment that is proposed. The noble and learned Lord, Lord Stow Hill, is well known to be in favour of the Common Market, and this is not a wrecking Amendment. We have had many other Amendments which are not wrecking Amendments, but not one has been accepted by the Government, or even considered by them. Speaking from this side of the House, I am very disappointed and worried that the Government are behaving in this way. We had the Housing Finance Bill, which was forced through this House before this Bill. This is one of the most important Bills that has come to this House since the Union with Scotland—and I am a Scot—and yet we are supposed to hurry the Bill through at the end of the Session, because we want to go on holiday and because Mr. Heath wants to have it in his knapsack in October. I think that for a House of Parliament this is intolerable and we should take more time over it.


I have listened to the speeches on nearly every Amendment that has been put down but I have not yet heard a single argument which has made me feel that an Amendment should be accepted. Equally, I feel that this Amendment also should not be accepted, and I shall very briefly give your Lordships the simple reasons why I say that. I should like to refer to the three paragraphs (a), (b) and (c). Paragraph (a), which deals with financial obligations, is quite clearly covered by Schedule 2, which states that Clause 2 … shall not include power— (a) to make any provision imposing or increasing taxation". I do not think I need say any more on that point.

Paragraph (b) deals with external and internal security. There is nothing whatever about security in the Treaty of Rome, and the only time that I have come across the word "security" is in Articles 24 to 27 of Section 3 of the Treaty of the Atomic Energy Community. They are mostly concerned with security in the field of research into nuclear energy, which is covered in Annex 1 to that Treaty. So, I feel that we do not need to deal with that subject. Going into the Common Market need not, and should not, in any way affect our relationship with NATO. Whether or not we have our troops in Germany has nothing to do with the E.E.C. I must admit that Britain's voting power in Europe, if we go for a union of nations on the question of defence, could be a very great step forward in the security of the whole of Europe, but this is something which we can negotiate only when we are in. So far as treaties go, we have broken as many treaties as we have ever kept. This has happened all the way through history. We have made and broken treaties with every country in Europe. I think the only country with whom we have had a treaty which we have never broken—and my history is not very good—is Portugal, our oldest ally.

I should like to read a fraction of paragraph (c). That states … or to prevent the erosion of the … sovereignty … being removed". That appears to me to be something of a double negative but, again, draftsmanship is not one of my strong points. But in the Common Market, Italy has an Italian Government which is in complete control of that country, and it is the same in France, Germany and Luxembourg. The Treaty has not altered their Governments in any way, but they have agreed to co-operate in making the European Economic Community work. I really feel that this Amendment is totally unnecessary.


If, as many of us feel, by going into the Economic Community we are looking to the future, then we must go in completely wholeheartedly, without taking too many precautions and without too many "ifs" and "buts". If the worst comes to very worst I feel sure that one can always simply not obey regulations, as has happened. But unless the Community is going to go together with determination and try to agree and to move forward in agreement, it will not succeed. If we go on niggling over every clause, then the last thing the Community will ever do is pull together if other people follow our example. Therefore I feel that practically every Amendment at which I have been present should never have been put forward.


Perhaps it would be for the convenience of the Committee if I answered the debate which has gone fairly wide—and perhaps I should, if your Lordships' will excuse me, address myself to the particular Amendment for a short time. It contains two propositions and I should like to deal with them separately but briefly. As I read Lord Stow Hill's Amendment it is that no enforceable Community right shall apply to the United Kingdom under subsection (1) of Clause 2 if both Houses of Parliament resolve that it would, could or might limit the power of Parliament in certain areas, the areas specified in paragraphs (a), (b) and (c) of his Amendment. That is the first proposition.

I would inform the noble Lord, Lord Shinwell, if he were here, that he is not a prophet without honour in this House because the Amendment is unacceptable) and I must tell my noble friend Lord Belhaven and Stenton that it is unacceptable to Her Majesty's Government. It is unacceptable because it would be contrary to our Treaty obligations. Under Article 2 of the Act of Accession, the provisions of the original Treaties and instruments adopted by the institutions of the Community are to be binding on the new member-States and will apply to those States under the conditions laid down in the Treaty and the Act of Accession. This applies equally—and I know that I am speaking to a lawyer, and a distinguished lawyer at that—to rights and obligations.

To provide, therefore, as the Amendment of the noble Lord, Lord Stow Hill, provides, that in certain circumstances some rights should not apply, would be to cut straight across this requirement. If we are to join the Community we must accept directly applicable Community law as a whole. That is a fundamental obligation of membership, the obligation written into Clause 2(1) of the Bill. I very much agree with what was said by the noble Lord, Lord Shinwell, and the noble Viscount, Lord Hanworth: that if we are going to join the club we must abide by the rules of the club. One of the fundamental rules is the principle of directly applicable Community law in the areas where it bites. The first proposition contained in Lord Stow Hill's Amendment would run counter to that principle.

The second proposition embodied in the Amendment is that no action should be taken under Clause 2(2) if both Houses of Parliament resolve that such action would limit the powers of Parliament in such areas. The practical effect of such a Resolution would be to annul any of the relevant orders or regulations made under Clause 2(2) and would prevent their being made. But as the noble Lord, Lord Stow Hill, knows, the Bill already provides Parliament with power to annul or prevent the making of an order or regulation under this clause. I would therefore suggest to Lord Stow Hill that this provision is quite unnecessary. As I see it the Bill provides greater safeguards as it affects Clause 2(2) than those proposed in the Amendment, because those safeguards apply to all actions under Clause 2(2) and not solely to the action relating to particular areas singled out in the subsections of the noble and learned Lord's Amendment.

Having said that, may I say that I recognise the feeling behind the Amendment: that our country could be forced to accept Community law with which it does not agree; forced to go too far, as the noble and learned Lord put it. All I would suggest is that those noble Lords who feel this underestimate the influence which we shall bring to bear. As soon as we accede to the Treaty and are full members we shall be able to play our full part in the Council of Ministers. Our Foreign Minister will play his full part and we shall be at the heart of the Brussels affair. This will not be a closed circle, as I pointed out when answering an Amendment yesterday. The procedures of the Commission and of the Community are open and consultative. There is plenty of chance for us to bring our influence to bear, not only in the Council of Ministers but also through all the other organisations and channels of the Community. So we shall be in a position to influence Community policy at the formative stage and I see no reason to believe that Parliament will be asked to implement laws which the United Kingdom has had no part in making.

May I turn briefly to the three sub-sections? Regarding subsection (a) the financial obligation, all I wish to say is that I agree entirely with what was said by my noble friend Lord Balfour. My interpretation is his.


I probably misunderstood what the noble Earl said, but I thought that he was saying that Schedule 2 was some protection against increased financial obligations. Schedule 2, of course, does not apply to anything other than subsidiary legislation. Therefore I should not have thought that the noble Earl was right. May I ask the noble Earl, Lord Jellicoe, under what provision would the Community increase, for example, our 1 per cent. contribution from the value added tax to the Community budget? Would it be possible for them to take that action if my noble friend's Amendment is not accepted?


My understanding was that my noble friend Lord Balfour was absolutely correct in what he said about Clause 2(2).


But not Clause 2(1).


He was not referring to Clause 2(1). I think his argument was bearing on the financial aspect and confined to Clause 2(2). All I was doing was corroborating what he said so far as Clause 2(2) was concerned. Regarding V.A.T., my understanding is that any substantive decision in this area of what I think is called "own resources" requires a unanimous agreement between member-States. This could not be given effect to without an Affirmative Resolution to an Order in Council under Clause 1(3) of the Bill. That is my understanding, and it seems to me to safeguard Parliamentary scrutiny in this area.


That being the case, if it requires a unanimous decision before that increase in the financial obligation can be carried out, in what way does that conflict with what my noble friend is asking for?


May I turn from that? I will come back to it. My objection is more fundamental to subsection (c) than to subsection (a) although I think it is fairly fundamental to subsection (a). I should like just to deal with subsection (b), the point which the noble Lord, Lord Shinwell, asked about, the question of external and internal security.

As the hour is getting late, I should like to direct noble Lords' attention to three Articles in the E.E.C. Treaty which bear on this. Articles 36, 224 and 225 are the really relevant ones. If those Articles are considered together, it will be seen that implicitly they accept that under crisis conditions—the sort of conditions to which I think the noble Lord, Lord Stow Hill, was referring—such as serious internal disturbances affecting the maintenance of law and order, or the event of war, or serious international tension constituting a threat of war, member-countries may have no choice but to take steps which might otherwise be inconsistent with the E.E.C. Treaty. This is already written into the Treaty, and therefore we are accepting it.

So far as the vital national interest is concerned, we have already discussed the relevant provision at great length during debates on previous Amendments. All I wish to say is that it is wrong, in our view, to seek to import into Statute law, with its necessarily precise phraseology, a snapshot, as it were, of the political facts of life in the Community. Indeed, it is virtually impossible to do so. Secondly, as my noble and learned friend the Lord Chancellor has argued, to try to give legal expression to the position described in the Luxembourg communiqué would, in the last resort, be contrary to Article 148 of the E.E.C. Treaty. In that connection, I would suggest that it would be quite wrong, therefore, for an acceding State to try to give internal legal force to a state of affairs which has not been defined as a Treaty or formal agreement by the present Community, however real that situation might be in political terms.

The corollary of this, in the words of the White Paper of last year, is that there is no question of any erosion of essential national sovereignty. But I should like to quote, and to emphasise, what the White Paper goes on to say. These words are now familiar to many of your Lordships. What is proposed is, a sharing and enlargement of individual national sovereignties in the general interest". We stand by that. Indeed, it is the very heart of this matter. There, in essence, is the reason why we and, if I may say so diffidently, our predecessors have been drawn towards Community membership and why we feel that in this latter half of the 20th century it is essential to the successful advancement of our interest and indeed that of Europe. Perhaps I have gone rather wider than the noble Lord's Amendment. As a layman to a lawyer I would submit diffidently that its first proposition is seriously defective because it runs clean counter, as I see it, to our acceptance of the full Community obligations.

However, I hope that I have dealt not unsympathetically with the noble Lord's Amendment and that to a certain extent I may have been able to appease my noble and disquieted friend Lord Belhaven and Stenton in suggesting to him that, should the noble Lord care to press this Amendment, we must perforce resist it.


The noble Lord has obviously felt and seriously approached the anxieties which are held with regard to this matter. He has said that there are defects in the proposal as drafted. As the draftsman, each time I read it I become more embarrassed by its very obvious defects. I moved the Amendment solely for the purpose of placing before the Committee for its consideration this approach, perhaps the last approach, to the question of safeguarding Parliamentary control. My own disposition, having I hope sensed the general reception by the Committee of my proposal, would be to ask leave to withdraw the Amendment. But I think probably, I hope in the discharge of my duty, I ought not to ask that permission because it has been made clear that there are deep anxieties about this. In those circumstances I think it would be to the general interest to ascertain how strong the feeling of this Committee may be. For that reason I feel that I ought to ask that the voices of the Committee be taken and not to ask leave to withdraw the Amendment.

On Question: Whether the said Amendment (No. 44) shall be agreed to?

Their Lordships divided: Contents, 23; Not-Contents, 126.

Ardwick, L. Greenwood of Rossendale, L. Rusholme, L.
Arwyn, L. Hirshfield, L. Shackleton, L.
Belhaven and Stenton, L. Hoy, L. Stow Hill, L.
Bernstein, L. Lauderdale, E. Strabolgi, L. [Teller.]
Beswick, L. Milner of Leeds, L. [Teller.] Watkins, L.
Blyton, L. Nunburnholme, L. White, Bs.
Davies of Leek, L. Phillips, Bs. Wynne-Jones, L.
Gray, L. Rhodes, L.
Aberdare, L. Cork and Orrery, E. Elliot of Harwood, Bs.
Abinger, L. Cottesloe, L. Essex, E.
Ailwyn, L. Cowley, E. Exeter, M.
Amory, V. Craigavon, V. Falmouth, V.
Astor of Hever, L. Craigmyle, L. Ferrers, E.
Balerno, L. Crathorne, L. Fisher, L.
Balfour, E. Croft, L. Gainford, L.
Belstead, L. Cullen of Ashbourne, L. Goschen, V.
Bessborough, E. Daventry, V. Gowrie, E.
Blake, L. Davidson, V. Gridley, L.
Boyle of Handsworth, L. De L'Isle, V. Grimston of Westbury, L.
Brabazon of Tara, L. Denham, L. [Teller.] Hailes, L.
Brentford, V. Derwent, L. Hailsham of Saint Marylebone, L. (L. Chancellor.)
Brooke of Cumnor, L. Digby, L.
Brooke of Ystradfellte, Bs. Drogheda, E. Hanworth, V.
Burnham, L. Drumalbyn, L. Harcourt, V.
Chelmer, L. Dundee, E. Harvey of Prestbury, L.
Chesham, L. Eccles, V. Harvey of Tasburgh, L.
Colville of Culross, V. Elles, Bs. Hastings, L.
Hawke, L. Mountevans, L. Selkirk, E.
Hemingford, L. Mowbray and Stourton, L. [Teller.] Sempill, Ly.
Henley, L. Shaftesbury, E.
Hewlett, L. Moyne, L. Somerleyton, L.
Hives, L. Netherthorpe, L. Stonehaven, V.
Hood, V. Newall, L. Stradbroke, E.
Hylton, L. Northchurch, Bs. Strathclyde, L.
Inchyra, L. Nugent of Guildford, L. Stratheden and Campbell, L.
Jellicoe, E. (L. Privy Seal.) Onslow, E. Swansea, L.
Kemsley, V. Orr-Ewing, L. Tanlaw, L.
Kilmany, L. Perth, E. Terrington, L.
Limerick, E. Polwarth, L. Teviot, L.
Listowel, E. Poole, L. Trefgarne, L.
Lothian, M. Rankeillour, L. Tweedsmuir, L.
Macleod of Borve, Bs. Reay, L. Tweedsmuir of Belhelvie, Bs.
Macpherson of Drumochter, L. Redmayne, L. Vernon, L.
Mancroft, L. Reigate, L. Vivian, L.
Massereene and Ferrard, V. Rhyl, L. Wakefield of Kendal, L.
May, L. Robbins, L. Waldegrave, E.
Merrivale, L. Rothermere, V. Ward of Witley, V.
Mersey, V. St. Just, L. Wynford, L.
Middleton, L. Saint Oswald, L. Yarborough, E.
Mills, V. Sandford, L. Young, Bs.
Monk Bretton, L. Selborne, E.

Resolved in the negative, and Amendment disagreed to accordingly.

House resumed.