HL Deb 12 September 1972 vol 335 cc202-319

2.51 p.m.


My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Earl Jellicoe.)

On Question, Motion agreed to.

Clause 1 [Short title and interpretation]

LORD BESWICK moved Amendment No. 1: Page 2 line 20, at end insert— ("( ) The text of any treaty which may be a Community treaty within the meaning of this section other than the preaccession and accession treaties, shall be laid before both Houses of Parliament, and the procedure provided in subsection (3) above shall not be followed until the lapse of 30 Parliamentary days following the date of laying.").

The noble Lord said: My Lords, this week the Government have an opportunity to purge the miserable impression created at Committee stage, that their sole aim and objective was to bulldoze this Bill through to the Statute Book before the Party Conferences, irrespective of any damage which may be done to our Parliamentary institutions. I hope that we shall accept this opportunity and I am moving this Amendment in that spirit. This is not an Amendment which seeks to frustrate the purposes of the Bill. It is not an Amendment which is hostile to the principle of the Community. It is an Amendment which seeks, however modestly, to ensure that Parliament is assisted to follow at least, and to influence at best, the legislation which would flow from our accession to the Community.

I confess at once that this Amendment does not go so far as I would have wished. I would have wished to have an Amendment which would provide that before our representative signed any treaty we should have the opportunity to discuss, if not actually to approve, a draft of the treaty concerned. I am not asking for that. I am asking for something which is less ambitious. I can see that procedural arguments, whether valid or not, could have been advanced against my other Amendment so we have settled for something which is more modest and, I hope, acceptable to the House generally. The Amendment asks that the text of a treaty be laid. I am asking that Parliament should see in time what it is proposed to do in our name. Let us have an opportunity to assess the importance of what is to be done and, according to the importance, Parliament can then decide what further consideration should be given to a particular treaty or regulation or other form of legislation, and what form that should take would be decided in the light of the importance of the measure emanating from Brussels.

On an earlier Amendment, much was made of the point that it is for Parliament to decide its own procedures and that it is not appropriate to write the equivalent of a Standing Order into an Act of Parliament. That I accept, but I hope it will also be accepted by the House, if not by the Government, that certain guidelines should be established and certain main principles set out clearly. How those guidelines are used or how the principles are followed would be a matter for Parliament to decide and for appropriate Standing Orders to be devised. This, I suggest, is in line with what the Select Committee which recently reported on these matters has recommended. The Third Special Report from the Select Committee on Procedure pointed out in paragraph 2 that: Major legislative proposals will be published by the Commission on submission to the Council of Ministers for decision, but for other proposals the House will have to rely on the Government if they are to obtain adequate information. I am asking that we should have adequate information about what is going on, and that a matter should be laid in sufficient time for both Houses to have an opportunity of seeing what it is that is being proposed.

I am not here asking for more than Parliaments of other nations of the Com- munity have set out in law should apply to themselves. The Federal Government of Germany, for example, have written into their equivalent of this Bill that treaties should be laid and that there should be an opportunity for discussing them. I can conceive of no reason, therefore, why this Amendment should be rejected, save—if I may put it in this way—for this stubborn refusal to accept anything which holds up the proceedings on this Bill. I trust that we shall be able to start on this Report stage in a more constructive fashion than was displayed during the Committee stage.

I happened to hear a discussion which took place between two noble Lords opposite during a Division en one of our Committee Amendments. One noble Lord was of a mind to support us and his colleague was trying to dissuade him. The first noble Lord said that he was not to be deterred. He thought—and this was the interesting point—that the Executive had too much power, anyway, and he was determined that in this conflict between the Exectuive and Parliament we ought to come down on the side of Parliament. How often we have heard that remark in recent years. How often we have discussed this kind of thing so far as legislation emanating from Whitehall is concerned. How often Back-Bench supporters of the Government of the day have seriously considered the wisdom of enhancing the power of the Executive as against Parliament. On both sides—and this is not a Party point—In other circumstances there has been this Back-Bench belief that we have gone far enough in strengthening the hands of the Executive as against Parliament.

We are not now considering the balance of power between an Executive in Whitehall and this Parliament. We are considering the balance of power between an Executive in Brussels and this Parliament in Westminster. I am not suggesting a radical move in favour of Parliament. I am conscious of the reluctance of this House to commit itself to radical changes on this Bill. Therefore, this is a modest Amendment, hut it could be a quite significant indication of the spirit with which the Government of the day are proposing to take us into the Community. If they are sincerely, seriously, trying to ensure that Parliament here will be able to follow events which start in Brussels, then I suggest that they will accept this Amendment. If, however, the Government, for their own reasons, are not able to accept the Amendment, I hope very much indeed that the House itself, thinking of it as a House matter—not as a Party matter but as a Parliament matter; a matter which affects the ability of this House and of the other place to follow what is being done—will be able to support this Amendment. I beg to move.


My Lords, in moving his Amendment the noble Lord, Lord Beswiek, has said he hopes that the Government will ensure that they do not "bulldoze" this Bill through Parliament, as he described it. His Amendment has certainly been very much modified when compared with the one which was put before your Lordships before we rose in August. Really, what it does is two things, as I understand it. It asks, first of all, that the text of a future treaty (because it does not refer to the pre-accession and accession treaties) should be laid before both Houses of Parliament; and, secondly, it suggests to your Lordships that the procedure which is now provided under Clause 1(3) of the Bill shall not be followed unless 30 Parliamentary days have been allowed to elapse. We have examined this Amendment with great care, but I would suggest to the noble Lord who has moved it and to the House that this Amendment is not in fact necessary, for reasons which I shall give.

I should like particularly to stress that, in the framing of this Bill, the Government have sought to ensure that kind of Parliamentary control which is, quite rightly, the object of the noble Lord and his colleagues who have put this Amendment upon the Order Paper. As everyone will be aware in your Lordships' House, a copy of any treaty is deposited in the Office of the Clerk of the Parliaments. Such treaties, like all treaties concluded by the United Kingdom, will be published by the Foreign and Commonwealth Office as Command Papers in the Miscellaneous Series; and when they come into force they are of course published again in the Treaty Series. I think it is possible that we underestimate the importance of the Official Journal in our procedure. The Official Journal of the Communities will, in the future, be the primary source document for all Community treaties, regulations, directives and other instruments.

But, my Lords, in this clause we are not dealing with regulations; we are talking about treaties: and, that being so, we have specifically made it possible, under the second Dart of Clause 1(3), that any treaty which is entered into by the United Kingdom, either with the Community or with a member of the Community, after January 22, 1972, shall not be regarded as a treaty unless an Order in Council has come before both Houses of Parliament. As your Lordships know, an Order in Council can lie upon the Table for a very long period. There is no limit to the time that an Order in Council can be laid and considered before it is in fact debated in your Lordships' House; and in Clause 1(3) we have taken care that these Orders in Council shall be subject to the Affirmative Resolution procedure. This does not in any way prohibit the Government of the day, if the treaty is of prime importance, from bringing it before either House of Parliament in the form of legislation. I would therefore suggest to your Lordships that the object of the Amendment which is now before the House is in fact fully fulfilled by the procedure already in the Bill. For that reason I hope that, on consideration, the noble Lord will withdraw his Amendment.

3.5 p.m.


My Lords, I fully accept the force of what the noble Baroness has said, and indeed I accept her good intentions in the matter. But, of course, I do not know how long she will be in the Government and what other Government there may be. The purpose of this Amendment is a simple one. On the Committee stage we moved an Amendment the effect of which would have been that this procedure could not be followed unless a treaty had been submitted to a Select Committee. The Lord Chancellor, and indeed the noble Earl the Leader of the House, adduced powerful arguments against writing that into this Statute, although of course there are Statutes dealing with procedure on Statutory Instruments. None the less, we accepted that we ought not to tie ourselves in this respect.

As my noble friend Lord Beswick has made clear, we now have the benefit of the Report of the Joint Select Committee on Delegated Legislation; and, if I may, I should like to extend my congratulations to the noble Lord, Lord Brooke of Cumnor, on the work of that Commitee. It is a really splendid and clear Report in a very confused field, and the noble Lord still looks quite well despite the amount of head scratching he must have done. It is quite clear there, and is quite clear in the evidence from Mr. Whitelaw, that the Government are contemplating (and later Amendments deal will this) a proper procedure of scrutiny, both of treaties and, particularly, of Instruments before the Community have adopted the proposals. But this Amendment does not deal with that. It seeks to ensure merely that the Government do not bring a treaty forward for approval by Parliament too rapidly, without providing enough time for it to be submitted to a Select Committee, as opposed to a purely scrutinising Committee on vires and so on—and I will not go into all that.

Now I am bound to say (and I believe this is very much the duty of Parliament; and, if I may with complete seriousness suggest it, I think it is a responsibility of this House) that we wish to build in sufficient delaying time to ensure that a Government who are anxious to proceed at very high speed—and we know that Governments do proceed at very high speeds, and no Government have proceeded at a higher speed than this Government in regard to certain matters—shall have time to get a report upon the significance of the proposal. It is fair for the Government to argue that this particular Amendment is not essential to the effectiveness of the Bill, but we submit that it is a useful improvement; and, indeed. many of our Amendments—and we shall come to this later—are directed to ensuring a degree of Parliamentary scrutiny and of Parliamentary control. I cannot, for the life of me, see why this Amendment cannot be accepted. If the period of 30 days is not the appropriate one, we can substitute any other time; but it seemed to us that 30 days was a reasonable time.

Let us acknowledge that many of these treaties are not really treaties in the sense that most of us would know them to be and are relatively simple documents: because they are treaties and because the Government have, rightly, provided in this case that there shall be Parliamentary control—unlike the practice in the case of many other treaties. They are perfectly right. I acknowledge what they are doing in this respect. We have put this in. I am not clear from what the noble Baroness said what will be the status of the Journal Officiel in this matter. One of the points made by the noble and learned Lord who sits on the Woolsack when we were debating a rather wider Amendment, was that Parliament can debate and discuss or send to a Select Committee anything that is before it. I agree that once the Order is laid it is "before Parliament"; and, if I understand it aright, details of the treaty will be before Parliament because they are placed—I do not know where: perhaps in the Office of the Clerk of the Parliaments. In that case I should like to know whether they then appear on the Printed Paper list as having been received.

What we are seeking to ensure is simply a reasonable period in which Parliament can make up its mind. It may be argued that it is then too late for Parliament to do anything about it because the treaty is signed, it has been made by the Community and we cannot hope to amend it. In that case if it is to be a rubber stamp there is not much point at ail in adopting the procedure in subsection (3). Our purpose is to see that Parliament has the opportunity to consider it, has the opportunity to express its opinion and, if it does not like it, to refuse to pass the Order and to say to the Government: "Go back and renegotiate this treaty!" This may be one of those strange treaties which, as I understand it, may have been entered into "with or without" any of the Member States—I will not attempt to reconstrue that; it was explained to us.

To my mind this interval is a test of the good faith of the Government. I accept that what the noble Baroness has said she means sincerely, and that she is convinced that there is no need for this. Certainly we have the procedure. Parliament can hold it up. There have been examples of Governments (and there may be similar examples in the future) who wish to hurry something more than is desirable. Let us face it: when the Conservative Party is in Government, the Opposition do not have the numbers to hold things up. This is why we think that the 30-day interval is necessary in which, if necessary, the matter can be referred to a Select Committee. With experience we may learn that certain things need not be put before them; but if there is a matter of importance we shall have time to adopt precisely the procedure which I believe the Government would wish to adopt anyway.

It seems to me that it is right to put this in the Bill. I shall return to this theme later. We are not simply passing a Bill for acceding to the Common Market; we are passing a Bill, admittedly with that purpose, but at the same time ensuring our own proper Parliamentary control. We know that Parliament is sovereign; for this has been made clear to us. There has been a great deal of argument on this matter and Parliament can in fact take its proper decision. I think it is right for us to press this, to build in this sort of protection. It is not a very major one. As my noble friend has said, we have deliberately produced moderate Amendments, ones that are constructive from a Parliamentary point of view. I believe that from a Parliamentary point cf view we have a real duty to provide this sort of provision. If I may say so, we have not had an assurance from the Government on the length of time that would be allowed. It may be that in this sort of instance they may not wish to give any assurance; for some things may be very simple and go through quickly. I think it right to build this into the Statute as an additional protection for Parliamentary scrutiny.


My Lords, before the noble Lord sits down might I ask what is to me a fundamental question? Does he find it impossible to conceive of circumstances in which a Government of which he is a Member might wish to deal with a treaty of the kind under discussion before 30 days have elapsed?


My Lords, it it is precisely because I do anticipate this possibility. I am not speaking in terms of any particular Government. I think it would be difficult for a Labour Government to be as authoritarian as is the present Government at the moment. But it is precisely to ensure that this procedure is built into the Bill. It may be that if the Government are willing to accept this one could have a further Amendment by which one would say: "…unless the House passes a Motion of urgency", or something of that kind. It is perfectly proper to provide procedure of that kind. If the Government were prepared seriously to look at this I am quite sure that my noble friend would be willing to take it back and build in an urgency provision that may be necessary. I should be interested to know what the noble Baroness says on this point.


My Lords, we owe a certain debt of gratitude to the pro-poser of this Amendment, not so much for the content of the Amendment but for the clarification that we have since had. This Bill, I think many people on both sides of the House realise, is a masterpiece of legal draftsmanship. Therefore, even more so it is extremely difficult for the ordinary Back-Bencher to understand all its significance and implications. It is precisely because we have this kind of Amendment put before the House that we may have so lucid and clear an explanation of the significance and implications of the Bill as we have had to-day from the noble Baroness, Lady Tweedsmuir. It is not for me to comment further on the very clear explanation that she has given as to why this Amendment is really not necessary and adds nothing to the Bill either in terms of Parlimentary control or in definition of treaties which are going to affect our internal law.

Both noble Lords who spoke from the Front Bench opposite mentioned the question of Parliamentary control. I think this is concerning many Back-Benchers because we on this side are aware, as are many on the other side, that the texts of treaties are compiled and after that it is difficult to change them. We are concerned with how the Members of the European Parliament are to be consulted and at what stage we are going to be able to scrutinise the text before it comes before the Council of Ministers. From the other side of the House we have had no help in this matter. This, it seems to me, is what we should be discussing. We should not be trying to alter the text of the Bill which cannot by its own definition lay down 30 days, 20 days or 40 days for a treaty to be laid before the House. What many of us on this side would welcome is cooperation with the other side in deciding how we are to go about legislation which is going to come before the Communities through the Commission and through the Council of Ministers.

We are protected in this House and in the other place by our control of our Ministers. They have to answer to us. Many Parliaments do not have this. It is no use trying to compare this with legislation in Germany. In the Netherlands, Ministers do not sit in Parliament and therefore they cannot answer. It is useless to try to make comparisons. Let us get our methods right, and let us get our pre-treaty methods right and not try to alter the text of this Bill.


May I, with the leave of the House, speak again, this being the Report stage of the Bill? I listened with the greatest care to the noble Lord, Lord Shackleton, the Leader of the Opposition, and I understand that he has removed those parts of the Amendment which were before the House on a previous occasion and which were referred to a Select Committee. I should like to thank him for his tribute to the work of my noble friend Lord Brooke of Cumnor on the Select Committee on Delegated Legislation, which I think is welcomed by us all.

The noble Lord, Lord Shackleton, said that the purpose of the Amendment was also to give time for a Select Committee to consider a particular treaty, but he has not included that as part of the Amendment before us. I would agree with the noble Lord, Lord Robbins, that there are occasions when one does not wish to have as long as 30 days to consider what essentially is a treaty. The part of the clause which we are considering is directly concerned with treaties which are international agreements, and future treaties can include trade agreements, technical co-operation agreements, association agreements and miscellaneous ancillary agreements. That being so, I agree with the noble Lord, Lord Robbins, that there are times when there is no need for the extended period of 30 days.

I also agree, if I may say so, with my noble friend Lady Elles that on occasions like this, when treaties vary so much in complexity and importance, one cannot lay down a precise time by which one should consider them. The Statutes of the Official Journal about which the noble Lord, Lord Shackleton, asked, will of course have the papers shown in the printed paper list which can be studied, but I would also suggest—


When the noble Baroness said that the papers would be in the official list, did she mean their titles or the text?


The titles of them, and the texts would be there for those interested to study them.




In the office of the Clerk of the Parliaments if it was desired to have any further information. I cannot refer to it at this moment, but I think it concerns the whole of the Parliamentary control issue. I think the noble Lord, Lord Shackleton, strayed a little into this. I think the fact that he amended his Amendment by deleting certain matters about the Select Committee showed that he accepted that the whole question of the minutiae of Parliamentary control should be examined as a whole. On that I would entirely agree with him.

On this particular matter we felt that there should be an Order in Council, which, as I said earlier, can in fact lie before either House of Parliament for an extended period for a treaty entered into by the United Kingdom which is of any importance. This can of course be debated and it can be rejected by Affirmative Resolution. The noble Lord said, quite rightly, that if the Government of the day did not have a large majority they would not be in a position to throw out an Order in Council. That of course is perfectly true, but I think it also right to say that any Government with a treaty of major importance are absolutely bound to bring it before the House in the form of legislation. Therefore, in view of the fact that the treaties range from matters of prime importance requiring legislation down to matters which do not need a rigid 30 Parliamentary days to examine them, I suggest that the noble Lord, Lord Beswick, would be wise to withdraw the Amendment.

3.24 p.m.


My Lords, I certainly cannot respond to the request of the noble Baroness to withdraw the Amendment, nor can I thank her for in any way meeting our point of view. She has not met our point of view at all on the question of time or the texts. She has said that if it were necessary to have an Order in Council the Order would be laid, but that the text of the document would not be contained in the Order in Council. I am trying to ensure that this Parliament shall know what is going on and that this Parliament shall know what is being done and decided in Brussels.

When the noble Lord, Lord Robbins, said that we might not be able to wait for 30 days, he let the cat out of the bag, with all due respect. Of course all Governments like to get matters through as quickly as possible. The whole argument between Parliament and Executive is that the Executive wants to get a thing through by the morning after and Parliament wants more time for consideration.


My Lords, will the noble Lord, Lord Beswick, allow me to protest that there was no cat in my bag? It was a completely sincere question contemplating a situation with which I thought any Government might be confronted; a situation in which in the public interest instant action was necessary. Suppose that this country, in conjunction with its partners in the Common Market, were confronted with a situation menacing to the peace of the world and that the conclusion of a particular treaty might tilt the balance in favour of peace. I would be very sorry indeed to see that held up for 30 days. That was all that was in my mind, and if you call that a cat in the bag—-


My Lords, my respect and affection for the noble Lord, Lord Robbins, is so great that he covers me with confusion. I certainly did not intend to imply that there was any lack of sincerity. I still think he let a cat out of a bag, even though it was a very sincere cat. The noble Lord tempts me to go further when he talks about an important treaty which might concern the peace of the world. One of my criticisms against the whole concept of the Bill is that it does not deal with the peace of the world. There is absolutely nothing in it which deals with the kind of defence and peace and foreign policy matters which I think would make sense for a European Community. It deals with completely different matters, very complicated matters, and there could be quite important matters.

I want to ensure that the Houses of Parliament in Westminster know what it is that is being proposed. It is quite certain that the noble Lord is right in saying that there will be occasions when the Commission or Council of Ministers will want to get a thing through quickly. This, as I was on the point of saying, is a feature of Governments. They always want to get things through quickly, or their civil servants want to do so. This is in the nature of bureaucracy; it does not like delay. I am working on the assumption that what we want in the Bill is the maximum possible and later we can have other legislation. Almost certainly other legislation will be required and as we get more sophisticated we could limit the time in certain cases or reduce the time in certain cases. But for a start I suggest that we would be wise to lay down certain guidelines and 30 days is the time which applies to certain other regulations. That, I should have thought, would be reasonable in this case.

The noble Baroness did not meet the question of time and did not give any indication at all that if matters are laid before Parliament there will be enough time for Parliament to consider them and to take appropriate action. She made no concession at all in that direction. When she talks about the necessity to lay Orders in Council she does not make any concession about the details of a treaty. She said that we can look at what is published in Brussels and in the journal. That is all very well, but I am a Member of this House of Parliament. I may not be entitled to go to Brussels. I want it to be an obligation on the Government here to print and lay the text of a treaty.


The noble Lord, Lord Beswick, is raising a very important point. I should say that all this information will be available in the Official Journal and. I understand, will be available to Members of both Houses in just the same way as draft Bills are available at present.


My Lords, the noble Baroness is giving this assurance, but I am saying that this is so important that it ought to go in the legislation. The German Federal Parliament considered this point and they came to the conclusion that it ought to be written into their Act of Accession. Surely we have as much regard for Parliamentary institutions and practice as our German friends. Surely we ought to go at least as far as they. Why should we be more restrained and more modest in this matter? No, my Lords, I am saying that this is so important that we ought to have it written into the Bill.

The noble Baroness, Lady Elles, said that we ought to be considering arrangements. Later on, certainly, the exact way in which the matters come to be looked at will have to be considered. We could have a Select Committee, as the noble Lord, Lord Brooke of Cumnor, expected in his Report. I, too, should like to pay my tribute to the document which he has produced, although in fact I quoted from the Report of the Select Committee on Procedure and not from the noble Lord's Report. The noble Baroness is saying that we ought to go into more detail about how the arrangements are made. Of course we shall have to go into those details later on; but we shall go into them for certain if there is a requirement written into the Bill. How we implement that requirement will be a matter for later consideration. In the meantime I hope that we, as a House, will be able to indicate to the Government that we place importance on this matter, and that noble Lords will support the Amendment.


My Lords, I intervene for only a moment to draw attention to one other aspect of the case that my noble friends have made this afternoon. May I first point out that it is noble Lords opposite who consistently, over many years, have spoken of the importance of Parliament, and in particular of your Lordships' House, being a judge and a check upon the Executive, which may have a majority in another place and may well be acting without in any way having the consent or general understanding of the electorate—does the noble Lord, Lord Derwent, wish to intervene?


My Lords, is this quite fair? It is rather the custom of your Lordships House that when the mover of an Amendment on Report stage has spoken twice, and cannot speak again, and when the Minister has spoken twice, and cannot speak again, further speeches, by custom if not by rule, do not normally take place. The Minister cannot answer a third time.


My Lords, if the noble Lord will look at Standing Orders he will see that a noble Lord who moves an Amendment, and also a Minister, may speak more than once. This has been interpreted on a number of occasions that one could not restrict him to speaking twice.


My Lords, it has been protested against on more than one occasion.


My Lords, whether it has been protested against or not, there is a Standing Order which has gone through our own Procedure Committee recently and has been accepted by your Lordships' House. The fact is that my noble friend has not sought either to withdraw his Amendment or to press it to a Division. I am sorry that the noble Lord, Lord Derwent, should have wasted a few moments on this matter.


My Lords, they were hardly wasted.


My Lords, in my view the noble Lord did waste time.

We have spoken a good deal about Parliamentary control. Quite recently the noble Baroness, Lady Tweedsmuir of Belhelvie, was conducting negotiations with Iceland about fishing. These were negotiations of great importance to the fishing industry. A treaty might very well be made, whether by the Group of 8 or the Group of 10 we do not know until the referendums of Norway and Denmark have gone through, but a treaty might very well be made under close secrecy between the Group and Iceland. A treaty might be made at the very end of a Parliamentary Session. We are experiencing now the problems which always arise at the end of a Session when the Government of the day wish to push through an Order in Council. As my noble friends have said, and I think it was accepted by the noble Baroness, there could be an Order in Council, but you do not necessarily have the text of a treaty available.

But what about industry itself? What about the people, whether the management or the workers' representatives, who could be seriously affected by the consequences of a treaty which had been entered into under a degree of secrecy? It may be that we in Parliament will have an opportunity to question Ministers, although an Order is in front of us for a matter of only a few days. But how is it possible for Members of Parliament to consult industry? The industry involved might be one of considerable complexity, and how could persons who might be directly affected be able to see the text of the treaty and make representations as is their right, to their Members of Parliament?

I would not stand by the period of 30 days and I take the point made by the noble Lord, Lord Robbins, that there may be exceptional circumstances when a particular Order should go through very quickly. But in general practice, particularly when matters of this sort are before it and when matters which are

being discussed overseas may not always obtain publicity in the newspapers and therefore create further discussion, I think that Parliament should be given as much time as possible before the Orders are put before the House for acceptance or rejection. Whether it is 15, 10 or 30 days, I think there should be a clear period for as long as is reasonably possible so that not only Members of Parliament but both Houses fully understand what is being asked of them. They should be given an opportunity to discuss the matter with whatever interested parties may be involved; but, above all else, those persons who may be directly involved should be able to make representation to their Members of Parliament.


My Lords, without taking sides in this debate I think we should take note of the statement of the noble Lord, Lord Beswick, that the essence of bureaucracy is to hasten action or legislation. That is not my experience nor, I suspect, is it the experience of the majority of persons in this country.

3.38 p.m.

On Question, Whether the said Amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 49; Not-Contents, 122.

Addison, V. Garnsworthy, L. [Teller.] Rusholme, L.
Amherst, E. Granville of Eye, L. Sainsbury, L.
Ardwick, L. Greenwood of Rossendale, L. St. Davids, V.
Baldwin of Bewdley, E. Henderson, L. Seear, Bs.
Bernstein, L. Hoy, L. Serota, Bs.
Blyton, L. Kings Norton, L. Shackleton, L.
Brockway, L. Lauderdale, E. Shepherd, L.
Buckinghamshire, E. Leatherland, L. Slater, L.
Clifford of Chudleigh, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Stamp, L.
Crook, L. Summerskill, Bs.
Davies of Leek, L. McLeavy, L. Taylor of Mansfield, L.
de Clifford, L. >Moyle, L. White, Bs.
Douglass of Cleveland, L. Nunburnholme, L. Williamson, L.
Faringdon, L. Pargiter, L. Wootton of Abinger, Bs.
Foot, L. Portal of Hungerford, Bs. Wright of Ashton under Lyne, L.
Gaitskell, Bs. Raglan, L.
Gardiner, L. Rhodes, L. Wynne-Jones, L.
Aberdare, L. Beauchamp, E. Cottesloe, L.
Ailwyn, L. Belstead, L. Courtown, E.
Alport, L. Berkeley, Bs. Craigavon, V.
Amherst of Hackney, L. Blackford, L. Croft, L.
Amory, V. Blake, L. Daventry, V.
Ashbourne, L. Brooke of Cumnor, L. Davidson, V.
Balerno, L. Clwyd, L. De La Warr, E.
Balfour, E. Colgrain, L. Denham, L. [Teller.]
Barnby, L. Colville of Culross, V. Derwent, L.
Bathurst, E. Cork and Orrery, E. Digby, L.
Drumalbyn, L. Latymer, L. Reigate, L.
Dundee, E. Leicester, E. Robbins, L.
Ebbisham, L. Limerick, E. Roberthall, L.
Elles, Bs. Lindsey and Abingdon, E. Rockley, L.
Emmet of Amberley, Bs. Long, V. Rothes, E.
Ferrers, E. Loudoun, C. St. Just, L.
Fortescue, E. Lovat, L. Sandford, L.
Gage, V. Lucas of Chilworth, L. Sandys, L.
Garner, L. Macleod of Borve, Bs. Savile, L.
Geddes, L. Malmesbury, E. Selkirk, E.
Glendevon, L. Mansfield, E. Shaftesbury, E.
Gore-Booth, L. Massereene and Ferrard, V. Stonehaven, V.
Goschen, V. Milverton, L. Stradbroke, E.
Gowrie, E. Molson, L. Strange of Knokin, Bs.
Grimston of Westbury, L. Monk Bretton, L. Strathclyde, L.
Hailes, L. Monsell, V. Suffield, L.
Hailsham of Saint Marylebone, L. (L. Chancellor.) Morrison, L. Swansea, L.
Mottistone, L. Trefgarne, L.
Halsbury, E. Mowbray and Stourton, L. [Teller.] Trevelyan, L.
Hankey, L. Tweedsmuir, L.
Han worth, V. Moyne, L. Tweedsmuir of Belhelvie, Bs.
Harvey of Prestbury, L. Napier and Ettrick, L. Vernon, L.
Hatherton, L. Northchurch, Bs. Vivian, L.
Hawke, L. Nugent of Guildford, L. Ward of Witley, V.
Hemingford, L. Onslow, E. Westwood, L.
Hives, L. Polwarth, L. Willingdon, M.
Hood, V. Radnor, E. Windlesham, L.
Jellicoe, E. (L. Privy Seal.) Rankeillour, L. Wolverton, L.
Kemsley, V. Rathcavan, L. Wynford, L.
Kilmarnock, L. Reay, L. Yarborough, E.
Kindersley, L. Redesdale, L. Young, Bs.
Lansdowne, M.

Resolved in the negative, and Amendment disagreed to accordingly.

3.47 p.m.

THE EARL OF LAUDERDALE moved Amendment No. 2: Page 2, line 23, at end insert— (" ( )(a) This Act shall continue in force for the period of five years beginning with the date of the passing of this Act and shall then expire unless it is continued in force in accordance with paragraph (b) of this subsection. (b) Her Majesty may from time to time by Order in Council provide that this Act shall continue in force for a period of five years beyond the date when it would otherwise expire; but no recommendation shall be made to Her Majesty in Council to make an Order under this paragraph unless a draft of the Order has been approved by resolution of each House of Parliament.").

The noble Earl said: My Lords, the discussion on the first Amendment has made clear what was evident throughout the Committee stage; namely, that what this House is pre-eminently concerned with is the historic issue, not new to our times, of control of the Executive. Hitherto, the Government have traditionally been called to account over Supply. Hitherto, Parliament has had the sole power to vote or refuse it. Hitherto, each Government has each year needed to run the gauntlet of

a Finance Bill against a deadline, and face regular Supply Votes. Henceforth, things will in a critical sense be otherwise. Henceforth, decisions on money supply, and even on unemployment policy, may derive from international decisions under treaties to which we are committed in advance, though they are not yet written. Henceforth Supply powers will be curbed, both because certain revenues are already allocated elsewhere and because we are obliged to contribute a predetermined proportion of the Community budget over which we have no control.

So what check on the Executive is to be possible once there has been this at any rate partial abdication of the control of Supply? Whatever it can be, unless it carries at least as much bite as the Votes on Supply, it will serve no purpose whatever.

What I now wish to move takes account of objections raised when I first sought to tackle the matter in Committee. My Amendment then proposed a yearly Order in Council to extend the Bill (or the Act as it would be) subject to a five-year enactment, and the Government's objections were of two kinds. The first, I submit, was insubstantial, contradictory and even incorrect. It was said by my noble friend Lord Jellicoe, replying with his customary kindness and courtesy, and taking time to explain what was in his mind, that such provisions as I wished to introduce would in effect bring hesitancy into our "ratification Bill", a term expressly endorsed by my noble friend Lord Colville of Culross, although neither he nor my noble friend Lord Jellicoe could quote the so-called "ratification Bill" on cur entry to NATO or SEATO, or indeed any other similar precedent. The fact is that there was none. Ratification Bills are not known to our procedures so this, in any case, is a nuts-and-bolts Bill.

All the same, my noble friend Lord Jellicoe, in his customary desire to be absolutely fair to the House and to every Member of it, assured the Committee—indeed, he gave an assurance three times over—that that Amendment was in fact technically compatible with ratification and would not harm it in any way. So in pursuing the subject now—and the subject is still control of the Executive—but pursuing it with a quite different Amendment, I now address myself expressly to the Government's second and, I believe, more serious objection. This was wholly political and described as such by my noble friend on the Front Bench. He said in effect that such a review provision would import an element of reserve and hesitation running contrary to the continuing nature of our Community commitments.

So far, so good. I accepted then, and I accept now, that an Amendment on those lines and on these lines might be susceptible of such an interpretation; but throughout the Parliamentary debate starting in another place two themes have been addressed to us by the Government with some consistency. The first has been the theme that our participation in the Community is a continuing act of Sovereignty. The second theme—chanted. I think, rather more loudly and persistently—has been that we owe it to Europe to join the Community and that Europe wants us to join in order, as it has been put. "to spread the light of democratic Parliamentary Government". This is what we would bring to Europe; this is what Europe needs; this is what we have to offer; and if we bring our democratic Parliamentary procedures to Europe we shall benefit both Europe and ourselves.

But neither of these themes has meaning unless Parliament has, and is seen to have, power to control, or at least to check, the Executive. Such power is the bulwark against totalitarian Government; such power is what we have built up since Cromwell; such power is what this Government's actions sometimes suggest they heartily resent; such power is what in the field of Parliamentary Government we have to teach others; and such power, my Lords, is the gift we could bring to the European epiphany.

One other objection was raised before by the noble Lord, Lord Robbins, who has just told me that he cannot be here now because of a previous engagement, though had he known sufficiently far ahead that I was going to refer to him he would cheerfully have cancelled his engagement. I hope he will find what I have to say in reply to his earlier objection satisfactory when he reads it. The noble Lord raised the objection, in the simple and unobscure language of the great teacher, expressed with his customary courtesy and grace. He said that the mind boggles at the prospect of an annual upset to everybody's commercial and industrial planning. On reflection, I think he was absolutely right. In my view, his was a more weighty objection than any that originated on the Front Bench.

That is why I now propose something quite different. I propose a five-yearly review with bite: a review to call the Government of the day to account, and to do so by a simple vote of each House. Five years is a good period. It matches our obligation to defend the Quinquennial Act and corresponds therefore to our historic political genius. Five years would bestraddle Parliamentary terms of Office and thus, with good fortune, lift the matter away from the Party struggle for power. Provision of this sort might even assuage the wrath of those who think that the issue should be decided either by referendum or by General Election.

As I see it, any Government's disentanglement from the Community would be about as unlikely and unthinkable at any five-year interval as in any one year it would be equally unthinkable and impossible for Parliament suddenly to cut off Supply and bring the State to a standstill; yet it is the threat of being able to do that which gives Parliament its power over the Executive. As I see it, my Lords, the Government of the day would be forced by the facts of life to get their Resolution through both Houses of Parliament, and that very necessity would place in the hands of Parliament a power to check and criticise, a power fully analogous to the present power to control Supply and to threaten to refuse it. As I see it, such a five-yearly review would be not so much a review of the performance of the Community, with threats to withdraw, as a review of the Government's performance within the Community. As I see it, this would provide a critical component now missing from the Bill. It would provide a demonstration to Europe not so much of doubt about the Community but of a proper. healthy, needful and worthy distrust—distrust of over- much Government. distrust of its ever-lengthening tentacles, distrust of the ever-human greed for more power once the appetite has been whetted by whatever power has already been wrung or conceded.

I have sought honestly to meet the objections raised in Committee. This Amendment might fail on drafting—though considering the expert help I have received, I doubt it. It may be that the Amendment is in the wrong place. It may be that the principle is right but the five year time-scale is wrong, and perhaps it should be seven, ten or three years. But the Government can move their own Amendment on Third Reading, and if they cannot take my words but will return with equivalent words of their own, I believe their honour will be enhanced and our gift to Europe will be enriched. My Lords, I beg to move.

3.58 p.m.


My Lords, we have listened to a most persuasive and scholarly speech from the noble Earl who has just addressed your Lordships' House, and I want to thank him for the Amendment he has tabled. Indeed, my only regret about it is that I had not thought of tabling it myself. It is a constructive Amendment and I think that if your Lordships will look back at the reports of the debate we had on Committee stage, nobody could fail to be impressed by the fact that it was a constructive debate. I cannot recall a single filibustering speech during the course of our deliberations on this Bill. I am not aware of any Amendment which was a wrecking Amendment. I suppose, to be frank, it was possible for my noble friends Lord Shackleton, Lord Beswick and a number of other noble Lords on this side of the House to have spoken repeatedly at the Despatch Box only because we were all constructive in our approach to the Bill. The noble Earl has continued in this way by meeting the criticisms that were advanced at the Committee stage. That is what we on this side of the House have also tried to do during the Report stage. I hope that the Government Front Bench are going to be more open to suggestion at this stage of the Bill than they were on earlier occasions: otherwise I am afraid it really will look as though the debate here is something of a charade, which will do nothing to enhance the reputation of your Lordships' House in the eyes of the people of this country as a whole.

It is interesting, looking back, to see that there are two themes which have constantly recurred in the course of the criticisms which have been made on this Bill. One is that it reduces and erodes Parliamentary sovereignty; the other is that it removes certain important matters from the ultimate jurisdiction of the electorate of this country. Those of us who have been criticising the Bill have tended to concentrate upon the old and rich values which I never expected to see put in jeopardy in this country. The noble Earl has moved from Parliamentary sovereignty to what one might call the sovereignty of the people and I support him in what he is trying to do. I am prepared—I admit reluctantly—to accept the thesis of the Common Market; but in doing so I want to do everything within my power to ensure that if we go in we do so in a way which will retain the respect of the people of this country for our democratic institutions, and which will not leave our people feeling, frustrated because they believe that they are no longer in a position to affect the course of our affairs.

What does this Amendment do? It seeks to ensure that in the foreseeable future the electorate will have some say in whether we are members of the European Economic Community. Her Majesty's Government have made a very great mistake in pushing this legislation through at a time when I believe they have no mandate from the people of the country, and when it is very difficult to argue that there is a mandate if one is to place any reliance upon the various means of testing public opinion. The Government are running great risks in taking for granted the tolerance and good humour of the people of the country by putting them into a position in which most of them have shown themselves reluctant to be put. If, on the other hand, we accept the Amendment of the noble Earl it will mean that the public will still feel that they have some say in what is happening so far as Europe is concerned.

After all, views change and situations change as well. It may be that in three or four years from now the people of Britain may decide that, after all, the Government were right and those of us who were hesitant and suspicious were wrong. Perhaps they will be beginning to see the great material benefits that noble Lords opposite prophesy will stem from joining the Common Market. It may be that the people of Britain will be delighted to be members of the Community and will wish to express themselves as being in support. If it is known that Parliament, after a five year interval, has to vote on this measure again it will mean that the electorate will have a chance to make their views known to their elected representatives. On the other hand if there is, as I believe there is going to be. a period of dangerous political instability inside Europe, it may be that the people of Britain will want to say that they no longer wish to be part of the larger Community and wish to revert to the previous situation.

Situations also change however much Governments may try to stage-manage affairs inside their own country. I have little doubt that one of the reasons impelling the Government to push ahead with this legislation in a way which means that they cannot afford to accept a single Amendment is because they want the whole issue to be cut and dried in this country before the people of Norway go to the polls. It is known to the Government and to the Powers of Western Europe that one of the most persuasive arguments that can be put to the reluctant people of Norway is that Great Britain has already decided, finally, to join the European Economic Community. Noble Lords will realise the economic interdependence between Norway and ourselves; they will know the long ties of friendship and respect which bind us together, and it will be a most persuasive factor when the referendum is held in Norway that your Lordships' House has finally decided that we must take a step which, on the present showing, looks like being an irrevocable step. If Norway decides to join it will be much easier to persuade Denmark to join.

However much Governments may stage-manage situations, nobody can say what kind of Governments there are going to be in Western Europe five years from now. Many of your Lordships will look back to the days before the war, not the days when we had people like Willy Brandt in charge of Germany, or whoever happens for the moment to be in charge of Italy, or people like M. Pompidou in France, but when we had people like Daladier, Laval, Hitler and Mussolini. I should find it utterly unaccentable for us to remain a member of a Community consisting of countries which were governed by men like those whom almost everybody in this country detested so thoroughly before the war. But how can anybody be certain that extremes either of Right or Left will not ultimately prevail in some of the members of the European Economic Communities?

I believe that it is an important safety valve to say that this legislation shall last for five years, that it shall be renewable, and I believe that the noble Earl has introduced all the necessary safeguards into the words that he has tabled on the Marshalled List. One of the worst things we can do is to produce a state of affairs in which a large section of our people have no respect for the laws within which they are expected to work and, perhaps still more dangerous. have no confidence in democratic institutions. If we proceed with the Bill as it now is, I believe that we are in danger of producing a situation of that kind. If we accept the suggestion of the noble Earl we can make absolutely sure that that situation can be avoided. Therefore I hope very much that, whatever one's attitude to belonging or not belonging to the European Economic Communities, many of your Lordships will be prepared to express yourselves as in favour of the Amendment of the noble Earl because it ensures that in the last resort it is the people of this country, who so far have not expressed themselves as in favour of being in the Community, who will decide whether or not we should remain members.


My Lords, this Bill is basically designed to amend a law concerning the regulations of trade and customs and excise to which the United Kingdom will, by virtue of our entry into the Treaty of Europe, be liable. Those regulations will be the same in the United Kingdom as in Europe as from and after our entry into the E.E.C. The effect of this Amendment will be to bring Continental trade almost to a halt every five years, because tariff barriers could be introduced at the fifth year by this arrangement. If this is the real object that my noble friend Lord Lauderdale, or the noble Lord, Lord Greenwood, have in mind, then I shall not support either of those noble Lords as I feel it cannot be in the interests of this country.

4.10 p.m.


My Lords, if the Government are going to resist the Amendment—and if this stage of the Bill follows the same pattern as the Committee stage did, then I have the gravest fears that they are going to do so—I confess that I shall be utterly at a loss to understand why. If the Bill is a good Bill and is going to bring to the country the benefits which we have all been promised, then within five years the Government have nothing to fear. Obviously, everybody will be in favour of renewing it. It is rather like a man whose house is being searched. If he has a clear conscience he offers no resistance; if he has something to hide, he has misgivings. But, as has been pointed out already, there are other precedents for limiting even the best thing. I have no doubt that the noble Earl the Leader of the House and those sitting beside him on the Front Bench are convinced that this is the best Government this country could have. I do not blame them for that, because I once thought so myself. But even that Government is limited to five years. What would be thought of a Government which had no time limit whatsoever? If the Government do well and produce the benefits to the country which they promised at the time of the General Election, then they have nothing to fear at the next Election; they will be reelected. So I cannot see why we are resisting a similar process with regard to the Communities Bill.

One has to remember that this is an extremely experimental Bill. The people of this country are to be subjected in certain areas to legislation which it is outside their own power to control. It may produce good effects or it may produce bad effects; we do not know as yet. Not even the strongest supporters really know what the results are going to be. And, as has been pointed out by the noble Lord, Lord Greenwood of Rossendale, conditions may change. As he rightly said, we do not know what Europe in five years' time is going to be like. Therefore, I hope that the Government will consider that this is a reasonable Amendment and will give us at least a chance of getting out should things go wrong.

4.14 p.m.


My Lords, I should like to deal straightaway with one point before I turn to my noble friend's Amendment per se—a matter which the noble Lord, Lord Greenwood of Rossendale, introduced which I think was really rather extraneous to this particular Amendment. That was the possible effect of acceptance or rejection of this Amendment in the Government's mind in regard to their attitude towards the Danish and Norwegian referenda. This was extraneous, but since the noble Lord has introduced this matter I feel I should dwell on it by way of preface for just a second. It is not for me to comment on the internal affairs of other countries, especially on the basis of newspaper reports or polls, which we all know to be either fallible or infallible as the case may be. But I should like to make clear that we very much hope that both the two countries which Lord Greenwood mentioned, Denmark and Norway, will join us as full members of the enlarged European Community. It is our belief that this would be in the best interests not only of those two countries but also of the European Community as a whole. Lord Greenwood has introduced this rather extraneous matter into the discussion of my noble friend's Amendment, but this is a decision for the people of Norway and Denmark to take according to their own constitutional procedures and quite regardless of what anyone outside those countries, be it in your Lordships' House or be it elsewhere, may think of the subject. By the same token, we shall be taking our own decision in our own way in the light of our recognition of the interests of our country.


My Lords, will the noble Earl allow me to intervene for one moment? If the consideration which my noble friend Lord Greenwood has put forward does not enter into the calculations of Her Majesty's Government, can the noble Earl say why, then, there is this unseemly haste to rush this legislation through?


My Lords, I do not agree at all that there is an unseemly haste. This legislation has been before Parliament since early this year and according to a timetable which the Opposition certainly did not object to when the proposed timetable for the Treaty of Accession and then the various Parliamentary stages were outlined in another place, way back last autumn, I believe. I cannot accept that there has been any unseemly haste.


My Lords, would the noble Earl be kind enough to tell me when the Opposition agreed to this timetable?


My Lords, this was the general procedure and the stages in which this whole process of accession would take place. I have not the details, but I will certainly look this up and reply to the noble Lord's invitation on that point at another stage of this discussion.


My Lords, was it not a fact that the Government themselves set a time limit to the different stages of the Bill and that all the Opposition was able to do was to agree that it would take certain portions within that limited timetable? Is not that what happened?


My Lords, the noble Lord is on a rather different point. I am not talking about the precise time-tabling of the Bill; I am talking about the various stages in which our whole discussion, the whole process of accession, would go on. But what I should like to make absolutely clear is that, whatever decision the Danes and the Norwegians, in the light of their own judgment of their own interest, take, it will remain the intention of Her Majesty's Government that the British Instrument of Ratification should be deposited—irrespective of those decisions. I really must make that clear.

That said, I would agree with the noble Lord, Lord Greenwood, that my noble friend Lord Lauderdale yet again has made a scholarly speech in introducing his Amendment. I think that the noble Lord, Lord Greenwood, added that it was persuasive. Maybe it persuaded Lord Greenwood; I must candidly confess that it did not persuade me. My noble friend claimed, or explained, that in the last four or five weeks he has tempered, at least in appearance, the rigours of the Amendment which he moved in Committee. That particular Amendment, as your Lordships may recall, was rejected by this House by a rather massive majority of 155 to 29 votes. That Amendment provided for annual review of this legislation with an automatic lapse after five years unless the legislation were re-enacted. His new Amendment, as he has explained, provides for a review every five years, enabling the legislation to be continued indefinitely on condition, as I understand it, that each House of Parliament decides by Affirmative Resolution that an Order keeping the Act in force should be made.

I must make it crystal clear from the outset that this is not an Amendment which the Government can accept. Whatever my noble friend may say to the contrary, the Amendment which he has just moved does not represent a true compromise in any real sense of the word on the Amendment which he moved and which was rejected by your Lordships a month ago. Like his previous Amendment, it embodies a break clause, and it is for that reason that I must oppose it in principle. What my noble friend wants, as I understand it, is a conditional contract which does not even specify its conditions but merely states that the contract may be broken at five-yearly intervals. Admittedly he has relinquished the idea of an annual review, but I would submit that the period of time between reviews is irrelevant. What is relevant is the principle of writing in a break clause of any kind; and that is the principle, whether it is a one-year or three-year or five-year or seven-year or a ten-year break, to which the Government object, and I believe rightly object.

The previous Amendment moved by my noble friend at any rate envisaged something in the nature of a final and permanent decision at the end of five years, as I understood it; but his present Amendment means that in effect we shall have to decide every five years whether or not the United Kingdom should remain a member of the Community. Whatever my noble friend may say and whatever the noble Lord may say, I think this is a virtual guarantee that our membership of the Community is bound to be an election issue at General Elections stretching on indefinitely ahead of us, and thus the part we play in the European Communities—our membership of it, our involvement in it, our contribution to the Communities—could all too easily become a shifting weight in the balance of political power at the time. I cannot believe that this is right, whether one is against the Bill or whether one is for it; whether one is on this side of the House or the other side of the House. I remember that in moving his Amendment during our Committee stage of this Bill my noble friend said that our accession to the Community should be set upon a rock of stone. What he is now proposing is that we should set it upon the shifting sands of the transitory Party political balance of the day. By means of this Amendment he would be assuring, and if your Lordships decided to carry it this House would be assuring, that our membership of the European Communities became nothing more nor less than an electioneering shuttlecock.

In arguing in favour of this Amendment both my noble friend and the noble Lord, Lord Greenwood, have dwelt on the question of Parliamentary sovereignty and Parliamentary control. We shall be coming back to that on Amendments to come. All I would say on the basic issue of our ability to back out, if we were to decide to do so, is that it must be recognised—and this is merely repeating what my noble and learned friend on the Woolsack has said and what has been said in another place time and time again—that if the people, and if Parliament, wished the United Kingdom to withdraw from the European Communities a Bill could be passed repealing this Bill, and although this would not entail automatic withdrawal it would leave the Government of the day without the means of fulfilling its treaty obligations, and therefore with no real alternative but to withdraw. Therefore it is absurd to pretend that by this Amendment this Parliament would assert the sovereignty of future Parliaments. The truth is that Parliament has, and will retain, the power and authority to repeal this Act at any time should we be faced with the sort of circumstances envisaged in the rather pessimistic assumptions of some noble Lords.

Then there is the other point on the question of Parliamentary sovereignty and control, on which I think my noble friend was more inclined to dwell; namely, the question of a watch over how we conduct ourselves in the Community. This is what I think he was urging we should be obtaining by the acceptance of his Amendment. I would rather say that the way in which Parliament will retain this is by all the methods of day-to-day accountability are open to Parliament Parliamentary Questions, Statements, Supply Day debates and so on. It is that day-to-day continuing accountability which is the way—and there are innumerable ways open to Parliament—in which it can retain its control over, and its close interest in and its involvement in, how we conduct ourselves in the Community.

My noble friend referred to the remarks made by the noble Lord, Lord Robbins. at our Committee stage of this Bill. In fact it was not only the noble Lord, Lord Robbins, who pointed out one effect of acceptance of his then Amendment, and I think the same would obtain with this Amendment. I remember also what the noble Lord, Lord Peddie, and the noble Lord, Lord Macpherson of Drumochter, said, that if an Amendment on these lines embodying the sort of break clause were incorporated in the Bill it would cut right across the principle of entry into the European Communities. Its acceptance would be entirely contrary to the whole spirit in which we have acted so far. It would not even be, as my noble and learned friend the Lord Chancellor so graphically suggested at our Committee stage, the acceptance of a marriage under conditions, because that at least rests on some assumption of permanency. It would be more in the nature of a trial marriage without benefit of clergy in which one of the partners is so unwilling to be committed that he will do no more than agree to a periodic contract. I cannot believe that it is right that our entry into Europe—this historic step, right or wrong—should be so hedged about with such halfhearted hesitation, and if we are to take this plunge let us, for goodness sake, take it full-bloodedly and positively; let us go in at the deep end if we are going in at all. Let us not make the fatal mistake, which one knows can be suicidal, of going in at the shallow end. That is precisely what the acceptance of the noble Lord's Amendment would involve—going in at the shallow end.

I should now like to say only one other thing at this 'stage. In moving his Amendment a month ago (and I am afraid what I am going to say applies to this Amendment as well) my noble friend has used, as is almost invariably the case with him, some pretty striking language. He said that his Amendment was in no way intended to compromise. to corrupt, to contaminate, to soil or to spoil our accession. That is what my noble friend said, and I do not for one moment question his sincerity but in urging your Lordships to resist his Amendment this time I claim that it would have precisely that particular effect. It would in fact compromise, contaminate, corrupt, soil and spoil our acceptance—and I will say why. It is because it would in every form and in the worst possible way import uncertainty into this great affair. Internally, as I have expressed the view, it would, in my opinion at least, make our membership of the Communities a political football—a political football to be kicked around at the hustings and in Parliament every five years. Internally it would be incompatible with the certainty which our industry—all sides of industry, both management and labour—requires in order to embark upon the long-term planning and the long-range investment which our membership of the Community calls for. Again, and perhaps worse, internationally it would cast every form of doubt upon our longer term intentions. Indeed, I would hold that it is doubtful whether our partners in this enterprise would really wish to be associated with so reluctant and so questioning a partner.

For all these reasons, despite the force of my noble friend's speech and the eloquent language in which as usual he has cast it, I must advise my noble friends, if my noble friend decides to press this Amendment to a Division, to go with me into the Lobby against the Amendment.


My Lords, I only intervene for one moment to say that in my judgment the noble Earl, Lord Lauderdale, is trying to solve an insoluble problem. He has made a very gallant effort and I should like to be able to support him. When we debated this matter last October I explained my reasons for opposing this Bill, and I will not go into them again. I have myself known many cases of business partnerships with no break clause which have led to great distress and discomfort. The noble Earl, Lord Balfour, explained how difficult it would be for business if we did not know where we were. He is absolutely right and that is why I described this as an insoluble problem if we commit ourselves to going into the Common Market, which I do not want us to do. I therefore much regret to say that I am unable to support my noble friend's Amendment as I had hoped to be able to do.

4.30 p.m.


My Lords, with the leave of the House I will answer some of the points that have been raised in this debate, beginning with a few words of thanks to my noble friend Lord Clitheroe for his kind remarks.


My Lords, may I point out to my noble friend that, being the mover of the Amendment, he does not require the leave of the House in order to reply to the debate?


My Lords, I am obliged to my noble friend for that observation. I always feel that if one can keep up with his courtesy one is doing very well indeed. I do the best I can in my simple, ignorant and crude Northern kind of way. I was about to thank my noble friend Lord Clitheroe for his words. We have been in the same battle lines in the past, though we have not always voted the same way and I much appreciated his comments. My noble friend Lord Balfour asked a straight question which demands a sincere and frank answer. He wanted to know whether the Amendment was intended to bring about a break. I must be entirely frank, otherwise one has no right to speak here. I am no lover of this E.E.C. proposition but I am afraid that we are going in. Since I fear that we will be joining the E.E.C., I want to see the best and not the worst made of it. That being the case, by far the most important consideration is that Parliamentary control shall remain and be seen to remain paramount, and it is with that in view, and not with a view to breaking our contract, that I moved the Amendment.

I agree with my noble friend Lord Somers that this is a very experimental operation. The treaties to which we are committed are as yet in some cases unwritten. How all this will unfold only the gods and devils know. How each will react to political situations nobody can tell, and, further to my noble friend's remarks, it is not even certain whether the number will be eight, ten or some other figure. In this context, the point made by my noble friend Lord Somers was of great validity, particularly when he said that it is proper and prudent to reserve some way of reviewing the situation. As my noble friend Lord Clitheroe pointed out, if there is no break clause in business partnerships and other arrangements great unhappiness can result.

My noble friend Earl Jellicoe produced what I can only describe as the same argument in reply to this Amendment as he did when replying to the Amendment which I moved in Committee. I have not been able to persuade him on this occasion and, to be frank with your Lordships. I did not expect to be able to do so. However, hope springs eternal; and of those whom we like and respect we are more hopeful still. As I did not think that I should be able to persuade him, his answer did not take me greatly by surprise. On the other hand, my noble friend seemed to contradict himself or at any rate to speak in contrast with what he said earlier in Committee. He quoted my words and said just now that my Amendment would indeed compromise, spoil and soil our ratification. Yet on Committee my noble friend assured us that my Amendment would do none of those things. He said then that it was technically acceptable but that the real question was whether, in political terms of the widest kind, this sort of review would not insert doubt, uncertainty and questioning or whether it would provide, as I believe it would, a reasonable measure of Parliamentary control.

My noble friend Earl Jellicoe feels that if such a review were conducted every five years it would become a long-range Election issue, stretching from one hustings to the next. I do not believe it would; the public are already bored with the subject and would soon become heartily sick of any attempt to review the matter at such frequent intervals. It would therefore not become an Election issue, particularly if the review were postponed to decent intervals, those intervals most likely falling between rather than at Election time.

My noble friend then suggested that this would seem to be an uncertain and hesitant operation. The Government have said that they will take us into the Common Market with the full-hearted support of the people. I remind my noble friend that Europeans read newspapers just as we do. They read English and know what is being said and discussed in this country. If they saw that the Executive here were not afraid of a five-year review—this bears on the analogy about searching an innocent man's house given by my noble friend Lord Somers—they would feel greater confidence in our accession than they are likely to feel as a result of the procedure that is now being proposed.

I could not help feeling, as I listened to my noble friend Earl Jellicoe, the way I felt on a previous occasion—namely, that we are not speaking the same language, although we are doing our best to couch our arguments in the courtesies which are familiar to this House. History will look at the arguments and judgments and will see who stood on what side. I believe that the rock of stone is the rock of confidence in terms of public support. Because of that, I feel that I must press the Amendment to a Division, reluctant though I am to do so.


My Lords, while I am not seeking to prolong the discussion with my noble friend I will, with the leave of the House, respond to the question put by the noble Lord, Lord Beswick—and I agree with my noble friend that the matter should be taken to a Division. The noble Lord, Lord Beswick, referred to the announcement made by my right honourable friend the Prime Minister in another place about the time-tabling of the arrangements for Parliamentary consideration of the question of Britain's accession to the European Communities. The noble Lord asked me when that exchange took place. It in fact took place on June 17 of last year and I refer the noble Lord to the Commons Hansard of that date, columns 643–5. At the end of his very long Parliamentary Statement my right honourable friend said: In Parliamentary terms this would mean that Parliament would be invited to consider and pass consequential legislation which would be substantial by the end of the Session 1971–72. In reply, the right honourable gentleman the Leader of the Opposition said:

"Is the right hon. Gentleman aware that what he has just said about the proposed arrangements will be welcome?".—[OFFICIAL REPORT, Commons, 17/6/71; cols. 643–5.]

That is the reference which I think the noble Lord, Lord Beswick, sought.


My Lords, I am grateful to the noble Earl for giving that reply, but it does not answer my real question. It is true that it was agreed by my right honourable friend in another place that the legislation would be required in the Session 1971–72, but there was absolutely no agreement as to when that Session should end. It is perfectly possible to extend a Session of Parliament. The only requirement is that the legislation shall be through before January 1, 1973. It would have been possible to extend the Session and so have afforded the Commons more opportunity to consider these matters.

4.38 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 46; Not-Contents, 152.

Addison, V. Granville of Eye, L. Platt, L.
Airedale, L. Greenwood of Rossendale, L. Raglan, L.
Balogh, L. Hale, L. Rhodes, L.
Barnby, L. Hughes, L. Rusholme, L.
Belhaven and Stenton, L. Kings Norton, L. Serota, Bs.
Bernstein, L. Lauderdale, E. [Teller.] Slater, L.
Beswick, L. Leatherland, L. Somers, L.
Blyton, L. Llewelyn-Davies of Hastoe, Bs. [Teller. ] Summerskill, Bs.
Brockway, L. Taylor of Mansfield, L.
Buckinghamshire, E. McLeavy, L. Watkins, L.
Clifford of Chudleigh, L. Maelor, L. White, Bs.
Davies of Leek, L. Morrison, L. Williamson, L.
de Clifford, L. Moyle, L. Wootton of Abinger, Bs.
Foot, L. Nunburnholme, L. Wright of Ashton under Lyne, L.
Gaitskell, Bs. Pargiter, L.
Garnsworthy, L. Phillips, Bs. Wynne-Jones, L.
Aberdare, L. Blake, L. Croft, L.
Ailwyn, L. Boothby, L. Daventry, V.
Amherst of Hackney, L. Braye, L. Davidson, V.
Amory, V. Brooke of Cumnor, L. Denham, L. [Teller.]
Annan, L. Caccia, L. Derwent, L.
Arbuthnott, V. Caldecote, V. Digby, L.
Ashbourne, L. Carrington, L. Drumalbyn, L.
Auckland, L. Clwyd, L. Dundee, E.
Balerno, L. Coleraine, L. Ebbisham, L.
Balfour, E. Colgrain, L. Elles, Bs.
Bathurst, E. Colville of Culross, V. Emmet of Amberley, Bs.
Beauchamp, E. Cork and Orrery, E. Falmouth, V.
Beaumont of Whitley, L. Cottesloe, L. Faringdon, L.
Belstead, L. Courtown, E. Ferrers, E.
Berkeley, Bs. Craigavon, V. Fortescue, E.
Blackford, L. Craigton, L. Fulton, L.
Gage, V. Lovat, L. Savile, L.
Gainford, L. Lucas of Chilworth, L. Seear, Bs.
Garner, L. Luke, L. Selkirk, E.
Gisborough, L. Macleod of Borve, Bs. Sempill, Ly.
Gore-Booth, L. Malmesbury, E. Shaftesbury, E.
Goschen, V. Mansfield, E. Shannon, E.
Gowrie, E. Massereene and Ferrard, V. Sherfield, L.
Grantchester, L. May, L. Stamp, L.
Grimston of Westbury, L. Milverton, L. Stonehaven, V.
Hailes, L. Molson, L. Stradbroke, E.
Hailsham of Saint Marylebone, L. (L. Chancellor.) Monk Bretton, L. Strange of Knokin, Bs.
Monsell, V. Strathclyde, L.
Halsbury, E. Mottistone, L. Strathcona and Mount Royal, L.
Hankey, L. Mowbray and Stourton, L. [Teller. ]
Hanworth, V. Suffield, L.
Harvey of Prestbury, L. Moyne, L. Swansea, L.
Hatherton, L. Napier and Ettrick, L. Tanlaw, L.
Hawke, L. Netherthorpe, L. Teviot, L.
Hemingford, L. Northchurch, Bs. Townshend, M.
Henley, L. Nugent of Guildford, L. Trefgarne, L.
Hives, L. Onslow, E. Trevelyan, L.
Hood, V. Polwarth, L. Tweedsmuir, L.
Hylton, L. Radnor, E. Tweedsmuir of Belhelvie, Bs.
Jellicoe, E. (L. Privy Seal.) Rankeillour, L. Vernon, L.
Kemsley, V. Reay, L. Vivian, L.
Killearn, L. Redesdale, L. Wade, L.
Kilmarnock, L. Reigate, L. Ward of Witley, V.
Kindersley, L. Rennell, L. Westwood, L.
Lansdowne, M. Ritchie of Dundee, L. Wilberforce, L.
Latymer, L. Roberthall, L. Willingdon, M.
Leicester, E. Rockley, L. Windlesham, L.
Limerick, E. Rothes, E. Wolverton, L.
Lindsey and Abingdon, E. St. Just, L. Wynford, L.
Lloyd of Hampstead, L. Saint Oswald, L. Yarborough, E.
Long, V. Sandford, L. Young, Bs.
Loudoun, C. Sandys, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 2 [General implementation of Treaties]:

4.49 p.m.

LORD BESWICK moved Amendment No. 3: Page 2, line 28, leave out from ("are").to ("in") in line 29, and insert ("to be applied directly").

The noble Lord said: My Lords, I beg to move Amendment No. 3. This may appear to be a question of rather minor importance, a matter of verbal usage, but I suggest to the House that here again we have something which is quite significant. Although I have little hope of persuading noble Lords who are now taking tea of the merits of the case, nevertheless it is a fact that we have before us an Amendment which, conscientiously supporting the Government, or supporting this Bill, they could accept.

The Bill, as drafted, begs the question as to how the United Kingdom is to bring into effect these provisions in the Treaty of Rome and the legislation deriving from the Treaty which are auto- matically to be the law of this country, uniformly with other Member States of the Community. There are provisions; there are Articles of the Treaty of Rome itself—for example, those laying down the common tariff; the provision ensuring free competition; those establishing the common organs and institutions of the Community. All these are obviously to have automatic application on a uniform basis in each Member State. But it does not necessarily follow that every Member State must apply that uniform law by identical legal processes or procedures, so long as the common Community law applies automatically, uniformly and contemporaneously throughout the various Member States of the Community. There is absolutely nothing in the Treaty of Rome to prevent the United Kingdom from using the form of legislation they choose, to bring Community law into effect, provided that it does not interfere with the automatic, uniform and simultaneous application throughout the Community.

This same argument applies to the so-called secondary legislation of the Community, the regulations issued by the Council of Ministers and the Commission under Article 189 of the Treaty of Rome. These, of course, are the 41 volumes of regulations which are constantly being referred to and to which there will be additions. The phrase used in Article 189 is that these regulations are to be "applied directly". That is what we are undertaking to do. Article 189 asks that the regulations should be applied directly. The Article does not say that they are to be given legal effect or use in the Member States without further enactment. I have taken a phrase front the Explanatory Memorandum. There it is stated, in sub-paragraph (a) of the second paragraph: to give the force of law in the United Kingdom to present and future Community law which under the Community Treaties is directly applicable in Member States.

Why should we go to the trouble, the extent, of saying that these regulations should be applied without further enactment? This surely goes too far in making an obeisance to the Commission. It is quite unnecessary to say that. Indeed, I have had assurances from, I think, every one of the noble Lords on the Front Bench opposite that we shall have some form of enactment when our obligations are brought here from Brussels. I have been told on the last Amendment that we shall have an Order in Council and that it will require approval. There may be arguments—and we shall have arguments later—as to whether the approval should be given in a negative or positive form. I am open to correction, but always I am told that there will be some form of legislation here which will change the law of this land. But here in Clause 2, it is proposed to include the words "without further enactment". This does not seem to me the truth; it does not seem to me accurate. We are accepting an obligation to apply them directly, but not necessarily without further enactment.

I put it to the House that the Amendment before the House seeks to reflect exactly the requirements of the treaties, using the terminology of the treaties; and it leaves it open, as the Treaty of Rome leaves it open, as to how the direct application of the Treaty and its derivative regulations is to be achieved, how they are to be incorporated in the domestic law of a Member State. I think I am right in saying (although I cannot quote the reference), that the noble and learned Lord who sits on the Woolsack lectured me at some length as to how what is called municipal law, the domestic law, will have to be changed in order to come into line with, or accept the instructions of, the superior law of the Community. If that is so, if there is going to be legislation of one kind or another, why are we asked to put into this Bill these words, "without further enactment"? It seems to me an unnecessary grovelling before this god of the Community. Although the effect is no different, the implications and the undertakings will be accepted in the same way, whether in my form of words or in the original form of words. Nevertheless, "directly applicable" is in the circumstances a more appropriate form and I hope very much that the House will agree. Accordingly, I beg to move.


My Lords, I feel in no way inclined to enter into debate with the noble Lord, Lord Beswick, on the substance of his Amendment, but I do feel inclined to take a little issue with him over his drafting. It is a matter of some importance, I think. I find it difficult to see how one can have in any Bill a clause containing the word "directly" used absolutely as an adverb. The noble Lord has spoken about direct application. That is a perfectly clear, unequivocal phrase, but "applied directly", I submit, is not, because "directly" has two meanings; it can mean without intervention or it can mean fairly soon.


My Lords. may I just ask the noble Earl, for guidance, whether he would apply the same criticism to the wording used in the Explanatory Memorandum?


My Lords, I am not quite sure that I understand the question.


My Lords, as I explained, I have taken the wording from the Explanatory Memorandum. Does the noble Earl's objection to the word "directly" apply also to the use of the word in the Explanatory Memorandum?


My Lords, without debating the Explanatory Memorandum, whether that is right or wrong, I must say that I am quite certain that it is wrong here, and we shall have what is in fact an ambiguous Statement.

There was a case between the wars (I forget the details; perhaps some noble Lord with a more retentive memory might tell me what it was) where there was a Treaty of some sort between ourselves and Germany which caused the most endless confusion, and almost led to an international incident, over the translation of the word "alsbald" in German. It may or may not have been clear to Germans, but it was not clear in English because it means "directly" or "presently". We have almost the same confusion here. "Presently" is another word which can mean now or in the future; it is totally vague. "Directly", I submit, has two possible meanings, and it is quite impossible by reading this clause to know which is meant.


My Lords, following on what my noble friend has just said, I should like to try to read this clause as it would appear if this Amendment were accepted. Really I cannot make sense of it. I will read the first part very briefly, and then I will cover the actual part which includes the Amendment. Subsection (1), with the Amendment, would read: All such rights, powers…and restrictions …created or arising by or under the Treaties, and all such remedies…provided for by or under the Treaties, as in accordance with the Treaties are to be applied directly in the United Kingdom shall be recognised and available in law…". You have the verb "are" and you have the verb "shall". I cannot make sense of this.

5.0 p.m.


My Lords, I think my noble friends Lord Cork and Orrery and Lord Balfour were right in saying that this appears to be a little confusing. If the noble Lord, Lord Beswick, will forgive me, I am afraid this is another of those occasions when I shall have to deal with some points of law. I know that he regrets this in the context of this Bill, and I will try to take it in as simple terms as I can. If the noble Lord finds difficulty in following what I am saying, I hope that he will interrupt. I should like to try to explain the situation to him because I am afraid that part of the motivation for his Amendment arises from some confusion in his own mind.

What we must do first of all is to get out the Bill and look at Clause 2(1), and then get out a copy of the Treaty of Rome. If the noble Lord has those two documents with him, then I think that we shall make some progress. The Treaty of Rome is a document which has been drafted for signature by Heads of Government; a document which applies to what States are to do as a result of agreements that have been entered into on their behalf and which are set out in series in the Treaty itself. There are all sorts of points, as the noble Lord, Lord Beswick, said, which appear in the different parts of the Treaty, and those are the things to which the various constituent States have bound themselves by their signature. As the noble Lord said, some of them obviously will have an automatic effect. I take, for example, the proposition that the Community has a legal personality. That is one of the Articles of the Treaty, and obviously that is something that has an automatic effect within the States that have signed the Treaty.

But other parts of the Treaty—and the noble Lord mentioned particularly Article 189—in fact require something to be done by the States themselves. It is not enough for the States to sign something saying, "Yes, we will accept that parts of this Treaty, and indeed this Article, are directly applicable inside our countries". They have then to go back and make sure that their domestic law carries out that fulfilment. Therefore, that is the situation where you are drafting the terms of the Treaty. In that context it makes sense to say that the regulations shall be directly applicable, because that is what the States are to go away and ensure happens by means of their own various forms of legislation. The noble Lord, Lord Beswick, is perfectly right in saying that there is no standard form which has to be adopted by all the States in order to ensure that this is so. It obviously has to vary between the Constitutions of the States, the Parliamentary and drafting techniques and conventions. Therefore, you will not get a uniform application of the way it is done as between the different States. The noble Lord was absolutely right about that.

We now come to the Bill, which is the other end of this particular process. Britain, now wishing to go into the Community and wishing to accept the whole of the Treaty of Rome, and other things as well, says: "Right, we will play our part, and we will introduce into our legislation the necessary Bill which provides an acceptance and a fulfilment of these obligations in international law which appear in the Treaty". There could be a number of ways in which this could be done, but I think that the way in which the Bill has in fact been drafted is the right one.

If the noble Lord would now look at Clause 2(1)—and I would remind him of this because I think that this is where some of the confusion arose—the subsection deals, in Treaty terms, with directly applicable documents, regulations, whatever they may be, Articles of the Treaty themselves: not just things that appear in Article 189, not just regulations, but all the other things which are held to be directly applicable. We now see how it is expressed in domestic language for the purposes of internal consumption in the United Kingdom. That is what the draftsman has tried to do here. The various documents and other matters which emanate from Brussels will, in fact and in practice, create a situation where the citizens of this country, and the companies in this country, will be affected in one way or the other. Sometimes they will be given something to their benefit; sometimes there will be obligations and liabilities laid on them as individuals and companies inside this country and in terms of our law. The draftsman has therefore expressed this by reference to "rights, powers," and the rest, and "remedies and procedures", because this is what will have an impact upon the inhabitants of Britain.

If the noble Lord is with me so far, we could look for a moment at the Explanatory Memorandum on the first page. The part that he quoted says: to give the force of law in the United Kingdom which is what I have just been saying— to present and future Community law which under the Community Treaties"— that is to say, in the international field with which I started— is directly applicable in Member States. In drawing attention to that, the noble Lord is pointing the way in which the duty is imposed as between States, and I would suggest to the House that that is not apt when one is dealing with the way in which you put it into English law so that it affects individuals, and that is what Clause 2(1) does. Simply in terms of English, I do not think that "procedures are directly applicable", and "remedies and obligations", runs very well. Therefore, simply from the point of view of English it is better to use the words that the draftsman has used.

The noble Lord then went a little further and, if I may say so with the greatest respect, confused the situation between Clause 2(1) and Clause 2(2). It will be recalled that the noble Lord said that the House, and the Committee before it, had been repeatedly told that when it came to implementation of Community documents of one sort or another there might be legislation; there might be "further enactments", which were the words the noble Lord referred to. That was said in the context of Clause 2(2) where we have indirectly applicable Community law. Sometimes that will be dealt with by means of powers that we already have under existing legislation on the Statute Book. Sometimes it will be dealt with by Statutory Instruments and Orders in Council under Clause 2(2). Sometimes, because of the complexity, the importance of it, or because it goes beyond the limitations in Schedule 2, it will be done by enactment, but that does not apply to directly applicable law under Clause 2(1) which comes directly into our law, lives side by side with our domestic law, and does not need further enactment in that way.


My Lords, the noble Viscount was kind enough to invite me to question him. I followed him exactly on Clause 2(2), but going back to Clause 2(1), as I understood what he was saying there is a difference between that body of law and the regulations and the indirectly applicable provisions of Clause 2(2). But on Clause 2(1), I have just been assured by the noble Baroness, Lady Tweedsmuir of Belhelvie, that when we are dealing with treaties we shall in fact have an Order in Council. I am not quite sure what the correct description of an Order in Council is, whether it comes under the category of enactments or not, but we are told that there should be something that we should be able to see and to study even with regard to treaties. That being the case, why do we use the phrase "without further enactment" so far as the legislation referred to in Clause 2(1) is concerned?


Because, my Lords, the Order in Council under Clause 1(3) does not enact the directly applicable law in so far as there is directly applicable law in any of the treaties concerned for the purposes of the domestic courts; it identifies it as being part of the treaties, both for this Bill and for other legislation. Therefore, it would, I think, have a subsidiary effect on Clause 2(1) in that the treaties referred to would have to be treaties which have been dealt with by Order in Council under Clause 1(3). But under Clause 1(3) the Order in Council itself does not have the effect of enacting for the purposes of our domestic legislation that particular provision of directly applicable law; it merely identifies it. It brings it in but it does not give it the force of law as such, because of the whole concept of directly applicable law, which means to say that it is directly applicable and does not need enactment. It is a difficult concept, but that is the distinction between an enactment and the Order in Council under Clause 1(3).


My Lords, I am indeed grateful to the noble Viscount. Am I wrong, then, in assuming that the assurances that: we were given that all the treaties are to be approved were assurances without the solid foundation we thought they had? The noble Viscount is now referring to what he calls the process of identification. He is saying that there is a difference between the process of identification of the treaties and the enactment of the treaties. I would put it to him in all sincerity that when his right honourable friend the Chancellor of the Duchy, Mr. Rippon, referred in the other place to something which Mr. Foot had said, he replied that, as it is, the clause makes it perfectly clear that the Affirmative Resolution must be obtained before the treaty is binding upon us. Therefore there are to be enactments, and if there are to be enactments why do we say in our Bill that they shall be applicable without further enactment?


My Lords, the noble Lord will have to look in detail at the wording of Clauses 1(3) and 20). We are talking in the terms of my right honourable friend the Chancellor of the Duchy of Lancaster about future treaties sinned by the United Kingdom as a party. What therefore happens is that that sort of treaty shall not be regarded as a Community Treaty unless there is the Order in Council under Clause 1(3). The phrase "Community Treaty" carries through into Clause 2(1), so what my right honourable friend said is perfectly correct. The treaty itself will not come within the context of Clause 2(1) until the Order in Council has been made, but the Order in Council gives the status of a treaty to that particular document. So it then comes within Clause 2(1) if there is anything directly applicable in it, but it does not enact the terms of the directly applicable provisions in the treaty. That is what I meant by identifying it. It falls within the scope of Clause 2(1), but it does not enact it word for word, like an Act of Parliament, because that is exactly what cannot be done.

Each State has to do it in its own way. There would be a great loss of uniformity if you tried to enact the directly applicable law in terms of national legislation. Therefore it is left without enactment as such to flow from the wording of the document which has been identified as a treaty. Of course there will be other sources of directly applicable Community law within treaties themselves. As the noble Lord himself has said, there will be regulations and there can sometimes be directives and decisions. Those are not treaties under Clause 1(3). This is where the noble Lord and I got into trouble on Clause 1 during the Committee stage. Those do not fall under Clause 1(3) at all. It would be very rare indeed in the future, as I tried to explain on the Question, That Schedule 1 be a Schedule to the Bill, for a treaty falling under Clause 1(3) to be something which produced directly applicable law. Such law is much more likely to be something else which arises under a treaty and which is therefore not at all susceptible to the Clause 1(3) treatment.

In those circumstances, the noble Lord will see at once that there is no opportunity for any sort of enactment, either an Order in Council or indeed a British piece of legislation of any sort. That is why we can say properly, accepting what my right honourable friend the Chancellor of the Duchy said, that the vast majority of the directly applicable bits of Community legislation will come in without further enactment, even of the sort that appears by way of an Order in Council under Clause 1(3). I hope that I have been able to explain that point to the noble Lord and to the House. I appreciate that it is difficult. I hope to goodness that I have got it right this time, and I believe I have.


My Lords, the noble Viscount looked at me as if for comment. I noticed that while he was speaking the noble and learned Lord who sits on the Woolsack was getting slightly restive, and I wondered whether or not he was concurring with the noble Viscount.


My Lords, what I am certain about is that my noble and learned friend was concurring in the hope that I have got it right, but we shall see later whether he has anything to add. But the long and short of it is that I think the noble Lord, Lord Beswick, must recognise that in this context we should use words which are for domestic consumption, words which fit in with rights, powers, liabilities, obligations and so on, and should not go back, as it were, to the international law context which is what his Amendment does. Perhaps the noble Lord will be so good as to consider that. I hope he will think that what I have said is an adequate answer to his Amendment. I do not suggest that this is unimportant but, with the greatest respect, I think that the noble Lord is just wrong on this.

5.18 p.m.


My Lords, with your Lordships' permission may I answer a question which was asked by the noble Earl, Lord Cork and Orrery? I do this not in order to darken counsel and distract your Lordships from the substance of the matter in hand, but, for the Record, to protect the reputation of the international lawyers who were involved in the treaties between ourselves and Germany. If the noble Earl looks it up he will find that the word "alsbald" was used by Herr Hitler in a speech. There was some confusion about what the word might mean, because it is not very commonly in use in high German. It was discovered to be the sort of word which was used by Herr Hitler from the kind of German that he had acquired at his mother's knee, and it was thought most probably to mean "right now". I apologise for that intervention, but I think that the lawyers should be protected.


My Lords, may I ask the noble Viscount a question? It may sound rather amateurish, but I can assure him that it has some foundation in fact. We are suppliants to the Common Market countries in order to become a member. There are elements of the Common Market—vis-à-vis trade of all kinds—which have no common. There are elements in trade policy which have not yet been resolved so far as we are concerned. Let us suppose that we go in on the present basis and are at a disadvantage in terms of the importation of cheap manufactures, and the Common Market countries wish to stabilise the position as it is. Can they do it on the basis of Clause 2 as at present worded, where it says: from time to time created or arising by or under the Treaties, and all such remedies and procedures ", and so on? Can that be done? Has this any application to the question I raised?


My Lords, I think the answer to the noble Lord, Lord Rhodes, is that this is an entirely different matter altogether. This would be a political matter. It would be dealt with politically at Brussels. I do not think it would have any directly applicable provisions of any sort at all in the terms of Clause 2(1).


My Lords, I have listened with the greatest care that I could bring to bear to the explanation given to us by the noble Viscount. I do not know if other Members of the House share my feelings, but I am still bewildered as to why, for the purposes of the natives, as it were, you have to use words different from those which are used in the Explanatory Note. If you are intending to refer to law which is directly applicable in the United Kingdom, why is it necessary in this Bill to translate that into the words, "without further enactment and so on? I do not see what gain there is in putting it in a different form. It may be that I am very obtuse about this, but it would be interesting to know whether other Members of the House who have listened to the noble Viscount are in the same position as I am.


My Lords, I am not sure that I am in the same position as the noble Lord who has just spoken, but I should think that when Hansard is read to-morrow one will want to compliment the noble Viscount, Lord Colville of Culross, on a brilliant legal performance. Whether anyone will be able to understand a word of it, I do not know. I think it will seem like a parody of a lawyer's speech. It seems impeccable. You cannot fault it. You cannot change it, until another lawyer gets up and states an even better case. Then a judge tries to interpret what Parliament has said; and one or other side wins. It then goes to the Court of Appeal or the House of Lords, and so on. This is really a parody of what we are talking about. We are trying to produce legislation for democracy. I do not think any layman will understand what has happened today, or will understand these particular clauses. Though a legalistic Bill might have its place and is a compliment to the lawyers who drafted it, I really think that to-day, in 1972—or 1973, when this Bill comes into force—we should have legislation which is clear to the layman and the businessman who will have to operate it.


My Lords, may I again express gratitude for the careful and patient way in which the noble Viscount conducted his tutorial? I fear, however, that I am unpersuaded. I would go further and say to the noble Viscount that, of all the arguments he has adduced in the course of the Committee and Report stages of this Bill, I find his most recent argument the least convincing. I think, further—and I say this without, I hope, causing any offence—that there is now clear evidence that representatives of the Government are now arguing one thing on one occasion and a completely different thing on another occasion to satisfy a given debate. I repeat, I say that without meaning to give offence. But I think I can show that it is so.

There have been a number of occasions when we have suggested that the Parliamentary processes are inadequate to give proper Parliamentary control. This was the theme behind so many of the Amendments in the other place; and there was one particular Amendment, the debates on which I read with great interest, in which they were asking for the right to approve the drafts of treaties before they were actually agreed at Brussels. Certain specific assurances were given on that occasion by the Chancellor of the Duchy, and I will read again—


My Lords, I really must try to get this clear. This is exactly where the noble Lord, Lord Beswick, and I—I confess it, and I said so at the time—got into trouble at the Committee stage. When it is treaties, that is right: when it is something which is not a treaty—a regulation, or something of that sort—it is a different matter. One must remember this dichotemy.


My Lords, the noble Viscount will no doubt allow me to finish what I am going to say. He is saying—I am repeating myself now—that there are two categories: there are certain treaties, and there is a certain body of indirect legislation which will follow from those treaties. He is saying that in one case there will be legislative action necessary, and that in another case it will not be necessary to have legislative action. That is what the noble Viscount has said; and he has introduced this completely new concept. It is something which I personally have not read of at all before—this concept of a process which has the appearance of law but which is not really law. It is what the noble Viscount called "a process of identification". Those are the words he used, and I shall read them with great care—and if I am wrong he will probably correct me. He is saying, "So far as certain things are concerned, we do not approve them; we simply identify them". This, I am saying to the noble Viscount, is completely different from the assurances that we have been given time and time again on other Amendments.


No; I am sorry. If I may speak again with the leave of the House, I said: Identify them for the purposes of Clause 2(1), in order to use it. If there happens to be anything directly applicable in it, in order to bring it within the realm of Clause 2(1) the Order in Council under Clause 1(3) will have the effect of identifying it for that purpose; but this is quite different from the point on Parliamentary control, which arises in an entirely different context altogether.


My Lords, we are both, I think, in danger of repeating ourselves, and probably of boring the House; but perhaps the noble Viscount will allow me to quote again from his right honourable friend—and I shall read to-morrow what I have said to see whether I was making the points as clearly as I would hope to make them. There was this particular debate in which it was asked, in another place, for the right to take legislative action. It was said: "We need the right of further enactment on certain measures"; and the argument opposed to this Amendment was, "Do not worry about it; you will have the opportunity". Now the noble Viscount's argument is that these assurances were more narrow than I am implying, but let me read him the words of his right honourable friend. He said this: As it is, the clause makes it perfectly clear that the Affirmative Resolution must be obtained before a treaty is binding on us. I repeat, it was said that before a treaty is binding on us an Affirmative Resolution is required. That, I hope, goes at least some way towards meeting an anxiety expressed by the honourable Members who have supported this Amendment. What needs to be understood by the Committee is that the Bill as it stands preserves the present constitutional practice. "The present constitutional practice" involves legislation, or it is meaningless, surely. What form of constitutional practice is it that brings about changes in the law of this country unless we have some form of enactment here? I really cannot follow this.

Let me go further. I am not saying that we should not undertake obligations, rights and the rest of it stemming from our accession to the Community. I am not saying that. What I am saying is that we are being assured that in all cases there will be opportunities for Parliamentary processes; or, as the noble Viscount's right honourable friend said, for the present constitutional practices to be preserved. That being the case, I am offering a form of words that would seem to me to cover both categories of cases. The noble Viscount has been good enough to say that in one category my form of words would probably make sense and be acceptable. I say that it does not make sense in the other case. I am suggesting to him that if he is right, if there is one category of cases where further enactment is necessary, then his words, the words in the Bill, are inappropriate. I am saying that he will not lose anything by accepting my form of words because both categories will be covered. "Directly applicable", which is the phrase I am suggesting, would still enable him to have this new concept of identification if he wishes to stick to it. It would also mean that in certain other cases we should have, as his right honourable friend has assured us, a Resolution of one kind or another, or Orders in Council. as the noble Baroness, Lady Tweedsmuir, told us earlier.

I say this simply in conclusion. The noble Earl, Lord Cork and Orrery, may be right in thinking my wording is inappropriate; but I took legal advice on this from people of considerable standing at the Bar. They found the words satisfactory. I would hope, on the basis of this need to have words for domestic consumption, which is what the noble Viscount has said, that my words are more appropriate than his.

5.31 p.m.

On Question, Whether the said Amendment (No. 3) shall be agreed to?

Their Lordships divided: Contents, 39; Not-Contents, 138.

Addison, V. Granville of Eye, L. Rhodes, L.
Arwyn, L. Greenwood of Rossendale, L. Serota, Bs.
Bernstein, L. Hale, L. Shackleton, L.
Beswick, L. Hoy, L. Shepherd, L.
Blyton, L. Hughes, L. Slater, L.
Brockway, L. Lauderdale, E. Taylor of Mansfield, L.
Buckinghamshire, E. Leatherland, L. Watkins, L.
Champion, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] White, Bs.
Davies of Leek, L. Williamson, L.
de Clifford, L. McLeavy, L. Wootton of Abinger, Bs.
Foot, L. Maelor, L. Wright of Ashton under Lyne, L.
Gaitskell, Bs. Phillips, Bs. [Teller.]
Gardiner, L. Platt, L. Wynne-Jones, L.
Garnsworthy, L.
Aberdare, L. Emmet of Amberley, Bs. Moyne, L.
Ailwyn, L. Falmouth, V. Napier and Ettrick, L.
Albemarle, E. Ferrers, E. Netherthorpe, L.
Amherst of Hackney, L. Fortescue, E. Northchurch, Bs.
Amory, V. Gage, V. Nugent of Guildford, L.
Annan, L. Gainford, L. Polwarth, L.
Arbuthnott, V. Gisborough, L. Radnor. E.
Ashbourne, L. Gore-Booth, L. Ranfurly, E.
Auckland, L. Goschen, V. Rankeillour, L.
Avebury, L. Gowrie, E. Reay, L.
Balerno, L. Grantchester, L. Reigate, L.
Balfour, E. Grimston of Westbury, L. Rennell, L.
Barnby, L. Hailes, L. Ritchie of Dundee, L.
Bathurst, E. Hailsham of Saint Marylebone, L. (L. Chancellor.) Rothermere, V.
Beauchamp, E. St. Just, L.
Beaumont of Whitley, L. Halsbury, E. Saint Oswald, L.
Belhaven and Stenton, L. Hankey, L. Sandford, L.
Belstead, L. Harvey of Prestbury, L. Sandys, L.
Berkeley, Bs. Hatherton, L. Savile, L.
Blackford, L. Hawke, L. Seear, Bs.
Blake, L. Henley, L. Selkirk, E.
Boothby, L. Hives, L. Sempill, Ly.
Braye, L. Hood, V. Shaftesbury, E.
Brooke of Cumnor, L. Jellicoe, E. (L. Privy Seal.) Sherfield, L.
Caccia, L. Kemsley, V. Stonehaven, V.
Caldecote, V. Kilmarnock, L. Strange of Knokin, Bs.
Carrington, L. Kindersley, L. Strathclyde, L.
Chesham, L. Latymer, L. Strathcona and Mount Royal, L.
Clwyd, L. Leicester, E.
Coleraine, L. Limerick, E. Suffield, L.
Colgrain, L. Long, V. Swansea, L.
Colville of Culross, V. Loudoun, C. Tanlaw, L.
Cork and Orrery, E. Lovat, L. Townshend, M.
Cottesloe, L. Luke, L. Trefgarne, L.
Courtown, E. McFadzean, L. Trevelyan, L.
Craigavon, V. Macleod of Borve, Bs. Tweedsmuir, L.
Craigmyle, L. Mansfield, E. Tweedsmuir of Belhelvie,Bs.
Craigton, L. Massereene and Ferrard, V. Vernon, L.
Croft, L. May, L. Vivian, L.
Davidson, V. Mersey, V. Wade, L.
Denham, L. [Teller.] Milverton, L. Waldegrave, E.
Derwent, L. Molson, L. Ward of Witley, V.
Digby, L. Monk Bretton, L. Windlesham, L.
Drumalbyn, L. Monsell, V. Wolverton, L.
Dundee, E. Mottistone, L. Wynford, L.
Ebbisham, L. Mowbray and Stourton, L. [Teller.] Yarborough, E.
Elles, Bs. Young, Bs.

Resolved in the negative, and Amendment disagreed to accordingly.

5.40 p.m.

LORD SHACKLETON moved Amendment No. 4: Page 2, line 33, at end insert— (" ( ) Any proposal by one of the Community institutions which if agreed upon would give rise to a right power liability obligation or restriction, enforceable in the United Kingdom, but not directly applicable, shall be laid before Parliament and published by Her Majesty's Government before the Council of Ministers of the Communities, or the Commission, as the case may be, takes a decision thereupon.").

The noble Lord said: I should like to explain to your Lordships why I regard this Amendment as the Amendment above all that should be acceptable both to the Government and to your Lordships. I would explain it by referring to the debate we had on a similar but different Amendment in Committee in which I sought then to arrange that Parliament should have an opportunity to consider any proposal by one of the Community institutions, whether it was directly applicable or not, by having it laid before Parliament and published before the Council of Ministers of the Communities or the Commission took a decision thereupon.

My Amendment to-day is a narrower one. It says: Any proposal by one of the Community institutions which if agreed upon would give rise to a right power liability obligation or restriction, enforceable in the United Kingdom, but not directly applicable, shall be laid before Parliament and…before the Council of Ministers of the Communities, or the Commission, as the case may be, takes a decision thereupon. I suspect that the word "Commission" in this Amendment is otiose because the number of such applications, thanks to the work of the Brooke Committee, is fairly restricted. It may well be that, as with other Amendments drafted by the Opposition, this one is in some way defective. If it is, I hope that the Government, who have not used the "defective" argument on Amendments of this sort as a main reason for rejecting them (I think the noble Earl on the last occasion pointed to defects in the Amendment but did not rest his arguments against them), will not use that as a principal argument.

The number of such enforceable but not directly applicable applications has been quantified. This point is dealt with in the Report of the Brooke Committee, and it appeared from that Report that the number is likely to be comparatively small. The Committee thought, although this cannot be certain, that in relation to 1971 there would be something of the order of 47 regulations, 14 directives and four decisions which would have given rise to the need for some legislative action in this country. What we are proposing, and hoping, if my Amendment is drafted correctly—though there is a possibility that it is not—is that Parliament, before decisions are taken (and this virtually means decisions by the Council, because although there are a large number of Commission regulations the majority of them, I understand, will be directly applicable and so will not require legislation to be effective), will set up the machinery, as I think the Government themselves are in favour of doing, which will enable Parliament to be informed of all significant proposals, whether they are directly applicable or not. But I have confined this Amendment to those which are not directly applicable.

I am reinforced in my belief that this is the right way to proceed by the Report of the Committee on Delegated Legislation and the evidence given by Mr. Whitelaw. Mr. Whitelaw was extremely forthcoming to the Committee, and I think it might be of interest to your Lordships if I read his actual words, because they indicate that what I am proposing is entirely consistent with what I believe to be the desire of the Government, though I believe that it needs statutory support or statutory requirement to ensure that it is carried out. My Amendment does not seek to lay down procedure by which Parliament shall consider these matters. Again I repeat that I accepted the argument of the noble and learned Lord the Lord Chancellor when he said that this question of Select Committees is better dealt with by Parliament when it decides to set up Select Committees rather than by Statute, notwithstanding the fact that there are statutes which have been concerned with procedures in the matter of referring matters to Select Committees.

What I must reject once again is the argument of the noble and learned Lord that somehow it is procedurally wrong to take this sort of power for Parliament. I would submit not only that it is not procedurally wrong but that it is in fact right that Parliament should do this. Perhaps at this point I may quote Mr. Whitelaw, who I think was being cross-examined at the time. I do not want to quarrel over the details or pin him down. But the message comes through very clearly. He was asked a question: But on the point of scrutiny by Parliament, is it agreed that Parliament does not have at this stage the power of scrutiny beforehand? Is this, then, a new function or a new power you want to give to Parliament?


May I ask the noble Lord, Lord Shackleton, to help? As this particular Member of your Lordships' House will be replying to the debate on the Amendment, could the noble Lord give the reference?


Certainly. This is the report of the Committee on Delegated Legislation. The numbering of pages is always complicated. This is on the Arabic No. 19 page, and paragraph 74, as opposed to the Roman XIX in which Lord Brooke operates. This is what Mr. Whitelaw said: This is not exactly a power but a new requirement, as I see it, which will be necessary for Parliament if we are successfully to exercise the influence which we should exercise as members of the Community. It will be necessary for us—as, indeed, it is for the Bundestag, although I do not know exactly the terms on which they do it"— that surprises me a little, although I should be happy to send the information to him if he wants— to know what is coming up before the decisions have been taken so that Parliament can exert its influence on those particular decisions before they have been taken. And that is the purpose"—

I shall deal with this— of the ad hoc committee which we have proposed. It should be looking into that position before decisions have been taken. I think Parliament would be very sensitive if, indeed, the situation were to develop that some of the directives from the Commission came into effect"—

I think he means the Council, but I would not be certain— by direct administrative action without Parliament having to be apprised of these. If Parliament did not know about a matter at all before it came up and had no chance of expressing its view or discussing the issue at all, it would be very sensitive indeed.

He chooses his language with delicacy. It is in order to be in the position of being able to know what is coming up and having the opportunity to discuss and to influence either ministers in this country or, maybe, even the Commission through the members of the European Parliament as well, through all the influence which would be exerted by the British Parliament, that one wants to have a system that gets to know of matters which are coming up for decision before a decision has been reached.

My Lords, there is much more of this kind that I could quote. The Lord President says in his Memorandum: All important instruments are made by the Council of Ministers of the European Communities acting on a proposal by the Commission adopted after extensive consultation with national experts or interested professional organisations.

We were aware that the Commission consults Government Departments and others. What we are saying is that Parliament must have an opportunity to express a view and that it should be put into statutory form, as in fact the Bundestag have already done. I have here the details of the relevant Article.

It was suggested, I think without any justification, that somehow what was appropriate for the Bundestag, because of their different constitutional position, was inappropriate for Parliament. But the important thing is that Parliament has always been very jealous of its right to know, and if there is one matter, one point, which has continually appeared in legislation, it bears on this. This is a relatively modest Amendment and I do not doubt that we shall need, in the light of experience, to set up machinery which goes wider than this Amendment. This will be a matter for Parliament to consider further and to discuss.

One of the arguments against putting this into Statute has been that if only the Opposition would get down and talk to the Government, all this could be solved. I will not deny that there is some force in that argument, but I am not sure that it is an argument to which in Parliamentary terms we should attach great force. We, as one of file Houses of Parliament, are not directly concerned with what may be agreed between political Parties. There are in fact—and I am glad that it is so—more than two political Parties in this country. There may be more. I do not want too many—I am generally content with two. But in a matter of such profound constitutional importance we ought not to rely purely on the boys getting together and having a sensible agreement.

It may be that Members of the Government wish to criticise the refusal of the Opposition to have these talks. They know well that this is a highly contentious measure. Some of us are in favour of entry into the Market and some are against. But while a Bill is actually going through Parliament it is very difficult to discuss complicated Parliamentary procedures on which the Government ought to have done their own thinking. I would submit, therefore, that something along the lines of my Amendment is desirable. Arguments that there is the European Parliament have nothing to do with this. Again and again we have been told by the Lord Chancellor and others—and I fully accept what they say—that Parliament remains sovereign and that certainly until the European Parliament works a great deal better and we have a great deal more experience of it, it will be for the British Parliament, for this House and another place, to see that the Government have their views, as they get the views from other Parliaments.

I think the noble Earl will concede that what I want to do is what the Government want to do. They want this to happen. They want talks to take place and hope as I do that it will be all right on the day and that there will be agreement. When I say it will be all right on the day I mean that sensible arrangements will be made. I am not concerned with detailed procedure but with the authority of Parliament in this matter. Noble Lords opposite will see that many of our Amendments bear on the subject of the role of Parliament and its ability or its right to be in a position to discharge its duties.

I hope very much that the Government will either accept this Amendment or agree to put down some alternative form of Amendment, which they could do on Third Reading, that would be satisfactory. It is correct that this is the sort of Amendment which in any ordinary legislation the Government would be disposed to accept. On a number of occasions my noble friend Lord Beswick has sought to test the good intentions of the Government. I well understand—I repeat this argument again—that the Government, for reasons partly concerned with their overloaded programme, do not wish this Bill to go back to another place. But this is a matter of concern to us as a Parliamentary institution. I speak as a pro. Marketeer. It is our duty to see that what ought to be done by Parliament is done, and that it should not be determined by the exigencies of a particular political situation with regard to a matter of such profound importance. Furthermore, my Lords, if this sort of Amendment or a similar Amendment were carried, it would go some way not only to calm some of the fears of my noble friends—and on the whole their fears have been exacerbated rather than reduced by some of the exchanges that we have had—but also to make it easier for the sort of co-operation which will be necessary. If we go into the Market I think that everyone will agree, whether or not they want to go in, that we have to take the matter seriously.

The argument for this Amendment contains quotations from the Brooke Committee and from other speeches. There are so many that one could go on at very great length. But I think that this is a simple Amendment, and let me stress again that it will not involve the objection to the earlier Amendment; it will not involve thousands of decisions having to be considered by the Committee. If I may add one further point, we know that the present arrangements for scrutiny, whether by the House of Lords or by another place, are concerned much more with vires than with merits. This is to enable Parliament, either through Committee or in whatever way it thinks, to inform Ministers as to the attitude they should take. Therefore I hope that this Amendment, or an undertaking to accept something similar, will commend itself to the Government. I beg to move.

6.1 p.m.


My Lords, I accept at once, as my noble friend Lord Shackleton does, the proposition that, broadly speaking, Parliament should be master of its own procedure. When we were talking about setting up Committees, and so on, that principle was prayed in aid, and I think it was broadly accepted on both sides of the House. However, I think it has always been recognised that that is subject to some limitations. May I give an instance? When one looks at the Statutory Instruments Acts 1946, that is, after all, laying down precisely in the terms of a Statute procedure which must be followed in the case of delegated legislation. The procedure for Affirmative and Negative Resolutions is precisely formulated by Statute. This was done—and I remember having some responsibility for the Bill—because Parliament felt strongly at that time that when you are delegating something in the form of an enactment which will have compulsive force as part of the legislation of this country, its coming into operation must be regulated by some sort of statutory procedure. It was that feeling of the other place at that time, as I remember well, which in effect generated:he Statutory Instruments Act 1946.

What my noble friend is really proposing in this Amendment which he has put before the House is something which is quite akin to the provisions of the Statutory Instruments Act 1946. His Amendment deals with proposals which may result in, say, a "right power or liability" enforceable in the United Kingdom, but not directly applicable; and I suppose he has in mind particularly—in fact I think he said so—directives. Again, if one looks at Article 189 of the Rome Treaty one finds that a directive shall be binding in respect of the result to be achieved upon every member State, but the form and manner of enforcing it shall be a matter for the national authorities. Therefore if the situation eventuates in which the Commission makes to the Council of Ministers a proposal that a directive should be passed, the result is that there is clearly an enforceable obligation—not directly enforceable but enforceable in the sense that it imposes upon our Parliament the obligation so to alter our own domestic law, if necessary, as to give effect to that directive.

I would submit to the House that a directive of that sort, with that compulsive force, is very much akin to what we ordinarily consider as delegated legislation. I do not regard the status of the two as being so vastly different. If it was proper to pass the Statutory Instruments Act 1946 in order to provide for the way in which delegated legislation should become part of our law, is it not reasonable to accept an Amendment of this sort in order to provide, in effect, something not very dissimilar with regard to a directive? I would submit that it is, and particularly because—and I speak as a convinced pro-marketeer—I suppose the ordinary citizen asks himself this question: Are we sure that our own legislative representatives will always be aware of what is taking place, or is there some risk of these nations springing on us something which in point of fact comes upon them unawares?

I have scanned the Rome Treaty to see what provisions there are in it which would make it reasonably certain that, say, a Back Bench Member of either House of Parliament is made aware of what is proposed in sufficient time. I should imagine—I do not know; I am simply guessing—that supposing you are considering a proposal which in due course will be made by the Commission to the Council of Ministers, it will be as a result of a number of representations made to the Commission. The Commission will have taken those representations into account and it will, I suppose, have consultations with interested parties. So far as I know, there is nothing in the Rome Treaty which would have the effect of making it in the least likely that a Back Bench Member of either House of Parliament would have the remotest idea that anything of that sort was going on.

If one looks to see what are the provisions with regard to publication, one finds in Article 156 that: The Commission shall publish annually, not later than one month before the opening of the session of the Assembly, a general report on the activities of the Community. That is not much of a safeguard. A proposal may be formulated in January to come before the Council of Ministers in February, and this report may only contain mention of it in the succeeding January. Then one looks at Article 191, with its reference to directives. It provides with regard to "regulations", which are not in question in this Amendment, that they are to be published in the Official Journal of the Community. With regard to directives all it says is: Directives and decisions shall be notified to those to whom they are directed and shall take effect upon such notification. Again, if one puts oneself in the position of the Back Bencher, what guarantee is there that he will know anything about a proposal that has been formulated and which is in process of being converted into a directive by the Council of Ministers, on which I know we shall be represented, until that actually emerges in the terms of Article 191?

If I may go back to the proverbial citizen riding on the top of the Clapham omnibus, who is doubtful perhaps as to the wisdom of our committing ourselves to the European Community, and one asks him the question: "Would you expect your representative in Parliament to know what is going on in the Commission, and to be aware at an early stage of what may ultimately crystallise into a directive?", I should have thought that he would say: "Of course I should. I should not dream of entering the Community unless I was certain that the proposals of the Community could at least be considered by my own Parliamentary representative, criticised and discussed, and in the great majority of cases approved, and that pressure by ordinary Parliamentary process could be brought upon Ministers who will represent this country in the Council of Ministers so as to influence their decision either in favour of or against the proposal that is put before the Council of Ministers."

It may be that I have missed something—I often do—and that I have not realised that there is some provision which would prevent that. If, of course, the gentleman on the Clapham omnibus likes to go to the information centre of the E.E.C. near Victoria he will there find the Official Journal. I do not know whether the noble Earl can give us some indication how soon a directive will appear in the Official Journal after it has been accepted by the Council of Ministers. I would have thought it would take some months perhaps before it actually finds its place in the Official Journal so as to be handy and available to anyone who wishes to have recourse to it. There will be nothing in the Official Journal about the genesis of the directive. While it is in the process of birth pains, he will not be able to find out anything about it unless he happens to be a person who for one reason or another is directly in contact with the interested parties. I suppose he can always ask the Minister who represents us in the European Economic Community and who would have to decide, as a Member of the Council of Ministers, what proposals are likely to come before the Council. If he puts that question at Question Time he will probably get the answer that the Minister does not know because it has not yet reached the Council. I submit that this is an unsatisfactory situation and that it would greatly enlarge the confidence of the people of this country if it were laid down by Statute that proposals for directives must at least be notified. They must be brought to public notice in circumstances in which the Back-Bench Member of Parliament who is not a Minister can be informed of them, can read them and make up his mind whether it is part of his duty to offer criticism by the ordinary Parliamentary process, from his place in the House of Commons or in this House.

It is for those reasons that I very much hope that the Government will recognise that in making this suggestion my noble friend and those who support him are not really seeking to infringe the principle that Parliament should be master of its own procedure. They are certainly not trying to obstruct the functioning of the Rome Treaty. My purpose and, I am sure, that of my noble friend is to make those procedures function more efficiently, to enlarge confidence in the result of our membership of the E.E.C. and to achieve what I should after all have thought to be rather an elementary object for the ordinary citizen—to enable him to be quite certain that his representative in Parliament will be informed at the earliest stage at which it is practically possible what proposals there are which are likely to come either before the Community or before the Council of Ministers. My Lords, those are the reasons which I should like to urge upon the House in support of this Amendment.

6.12 p.m.


My Lords, I apologise to the noble and learned Lord, Lord Stow Hill, for "jumping the gun" on him, as it were, and I should like to begin by acknowledging the moderation with which the noble Lord, Lord Shackleton, moved this Amendment, together with the moderation and the authority with which the noble and learned Lord, Lord Stow Hill, has supported it. Let me say immediately that I have considerable sympathy in principle for the basis from which they have started in proposing this Amendment. No one would have been more pleased than I if matters had been in such a state that before this Bill was enacted we could have been agreed, as Parliamentarians rather than as proponents or opponents of entry, on the procedures to be introduced for Parliamentary scrutiny and involvement in the new situation which will obtain when this country enters the Communities. I should like to dwell on this for a moment, if I may, and I should like to give some thoughts on this whole question of Parliamentary scrutiny. I apologise if I appear to be taking your Lordships on a slight detour, hut this is a matter of crucial importance.

I think there is a very large measure of agreement in all parts of your Lordships' House on the importance of Parliamentary involvement and scrutiny here. I think there is also agreement that in addition to the normal Parliamentary opportunities for bringing the views of both Houses to bear on Ministers, some special machinery for scrutiny of draft instruments needs to be considered and worked out, and I hope, agreed between the major Parties. Here I recognise the advance, if I may so term it, which the noble Lord. Lord Shackle-ton, has made since we discussed this in Committee. There is also agreement that the form the arrangements might take—and particularly if it were a Select Committee or some other form of committee—is not in itself a matter which is appropriate for Statute.


My Lords, may I interrupt the noble Earl for a moment, to say that I hope there will be a similar advance on his side?


So far, so good. There is a consensus between us all, whether we are opposed to entry or are in favour of it. I am glad that this is so, because this is essentially a matter for Parliament and not one for Party controversy.

When the noble and learned Lord. Lord Diplock, who was a distinguished member of the Joint Select Committee of my noble friend Lord Brooke, addressed us so strikingly on Second Reading, he said that this problem was new and urgent. He also said that it could be solved if Members of both Houses would give their minds and their good will to it. He also made it clear that in his view at least—and his view was an authoritative one—no change in the Bill itself was needed in order to reach that position

and it is a position which I think we all wish to reach. I agree with the noble and learned Lord on those counts. What is more, we have time and time again indicated, from the moment when my right honourable friend the Chancellor of the Duchy of Lancaster proposed this sort of ad hoc committee last February, that we were both ready and willing to take part in the kind of discussions which the noble and learned Lord, Lord Diplock, was advocating.

I do not wish to labour this point, because I realise that we all have our Party political difficulties. I think it is a very considerable pity that, as yet, we have not made any advance along this road of joint consideration of the problems involved in the scrutiny of these Community instruments. I believe there would be a very great advantage in these discussions taking place. I regret the fact that for one reason or another they have been blocked. The noble Lord, Lord Shackleton, in speaking of this, expressed the hope that in due time the Parties would get round to considering these matters. Well, my Lords, I think this is the due time. We shall be acceding on January 1, and I believe that great damage could well be done to the ability of Parliament ab initio on accession to scrutinise and to be involved in the way in which I think your Lordships believe it should be involved in the workings of the Community. It will certainly be severely handicapped, cribbed, cabined and confined unless we can get together to work out these procedures.

On the procedures themselves I should like, if I may, just to give some indication of what is in my mind at least. I was lightly twitted—or the Government was—by the noble Lord, Lord Shackle-ton, to the effect that the Government have not advanced their own ideas. First, I think there is general agreement on the broad principles. The machinery which we need to work out must enable Members of both Houses to bring their views on significant Community proposals to bear on our Ministers before decisions are made by the Council of Ministers. But to devise a mechanism which will effectively secure this, taking account of all the diverse procedures in Brussels and here at Westminster, and the heavy pressure of business in both places, will demand a great deployment of ingenuity, skill and time, and that is why it is so urgent to get on with this.

One of the first tasks of Members of Parliament will be to identify in a preliminary way which draft proposals merit fuller Parliamentary examination. I assume that it is this aspect of the question that the Procedure Committee of another place have in mind when they refer to the need to consider a procedure for sifting. This appears to recognise that not all instruments would need to be examined in the same way, and the procedure for such an initial sifting or weeding out, and what help the Government could or should give in this process, are questions which need careful thought. As to the more substantial examination of these proposals, which are identified as important, there are a number of possibilities. I have noted with particular interest the views of the Select Committee on Procedure, and I quote their words: Careful consideration will be required of the role of Select Committees in scrutinising and making reports to the House on Community policies, on the policies of other member Governments in regard to Community affairs. and on the resultant policies of Her Majesty's Government. This will be particularly difficult since the House has not at present a comprehensive structure of specialist committees covering the principal functions of government"— as indeed the Bundestag have— and able to interrogate Ministers, such as exist in Parliaments of Member States of the European Communities The Procedure Committee clearly recognised that what now has to be devised is a procedure compatible with our own particular system of Parliamentary democracy, and that the experience of other countries cannot necessarily be regarded as a blue-print. They have also suggested that there may need to be provision for general debates in both Houses on important matters, and they have suggested a Grand Committee on European Affairs. On the other hand, as those of your Lordships who have given deep attention to this matter know, the Study of Parliament Group's preferred solution is a single Select Committee on European Community Affairs which would be large enough to divide into working subcommittees.

It would be wrong for me to come down in favour of one or more of these proposals at this stage, and there may be other possibilities. But at this stage in my remarks I should like to make three brief comments. The first is that we must be on our guard here against separating the consideration of Community policies in particular areas too sharply from consideration of overall policies in the same areas. Secondly, there is a great problem of manpower involved here in manning whatever committees or sub-committees may be set up, Thirdly, we shall quite clearly have to take into account the comments and recommendations made by my noble friend Lord Brooke in his recent Report. The Joint Select Committee were considering those instruments which would call for United Kingdom subordinate legislation, but there is quite clearly a need to mesh together their proposals, and whatever proposals may emerge for considering Community instruments as they come to us from Brussels.

I apologise for speaking at some length on this matter, but it is important and I thought it right to outline the general stance of the Government on it—their recognition that there is a genuine problem here, and their real desire to see that there is an effective machinery for Parliamentary scrutiny. The Amendment, however, is not concerned with what I would term the substance of the matter. It is concerned not with scrutiny and examination, but with the provision of information. I say that this is not the heart of the matter because I am convinced that arrangements for scrutiny can work just as satisfactorily without a statutory requirement as they can with a statutory requirement, the type of statutory requirement embodied in this Amendment. I suggest to the House that they can work better without the statutory requirement, and I will say why.

Basically I have three objections to the importation of a statutory requirement. The first is a technical objection, and I will not rest on that because, as the noble Lord, Lord Shackleton, has generously acknowledged, we have not been resting on technical objections. It is the same objection as I advanced on a similar Amendment at our Committee stage. I quote from my words at col. 928 of Hansard for August 7: In the first place, the Amendment— and this applies also to the present Amendment— merely requires the text of the proposal to be published before it is adopted by the Community. Such publication could therefore be left to the last moment before a Community decision, when there was no practical opportunity for Parliament's views to be expressed and communicated to our representatives in the Council of Ministers. I am sure that this is what noble Lords opposite do not desire. I am sure that is the case, but the same technical objection would apply to the Amendment as at present drafted.

The second leg of my objection to the importation of this statutory requirement is a far more fundamental one, and it is that it is totally unnecessary. The noble and learned Lord, Lord Stow Hill, put his finger on a very important point: the timing of the appearance of these instruments in the Official Journal. He was worried that Parliament would not be informed of them, and that Members of Parliament would not be informed of them until they had been approved by the Council of Ministers. This is not the case. I explained during our Committee stage that the bulk of Council instruments have to be referred in draft to the European Assembly, the Economic and Social Committee, or both, and immediately they are so referred they are published in the Official Journal. Once we are members of the Community the Journal will be available in English, in addition to the other official languages of the Community, and it will be available to Members of both Houses, as has been made very clear on numerous occasions.

It is important not to underrate the significance and importance which the Official Journal will carry in our future proceedings. I expect that it will come to be used in much the same way as Bills and Statutory Instruments are used and referred to at present, and will be freely and immediately available to members on the same basis. The Official Journal of the Communities will be the primary source document for all treaties, regulations, directives and other instruments. Again, if I may labour the point, the directives will appear in draft in the Official Journal as soon as they are communicated to the European Assembly or to the Social and Economic Committee.

In order to get this absolutely right I should explain that certain draft Council instruments—not many, although I should not wish to be too precise—are not required by the treaties to be referred to the Assembly or to the Economic and Social Committee, and hence are not formally published in draft in the way in which I have explained to your Lordships. In most cases it will be possible, if Parliament so wishes, for these to be made available in the same way as the published instruments. I would also remind your Lordships that during our Committee stage—and I was speaking here with care—I gave an undertaking that the Government were prepared, and indeed willing in principle, to provide Members of both Houses with information about draft instruments before the Council, whether they were formally published or not. That is why I believe that the statutory requirement, in addition to being technically imperfect, is unnecessary.


My Lords, is the noble Earl saying that his undertaking which I fully acknowledge, has the same Parliamentary force as a statutory requirement? That is what he was arguing.


My Lords, I was not saying anything of the sort; I was saying that this was an undertaking on behalf of the Government; and I was saying it was therefore unnecessary, because of that and because of the existing machinery for the publication in draft of these instruments in the Official Journal, to import the statutory requirement. But there is a very real practical objection as well—and again I must go into some detail here because the detail is important. There are sometimes occasions when, for good, practical reasons, instruments communicated to the Council are not in fact published. This can happen on grounds of urgency—for example, in the case of follow-up action after a devaluation; or it can happen on confidential grounds when, for example, the appointment of members of the Community institutions is involved. In such circumstances it would plainly be impossible for advance information to be given to Parliament.

There is a real practical difficulty here and it extends far beyond a technical point. If a requirement in this area were to be imported into Statute, as the noble Lord's Amendment requires, we should in effect have two choices. We could either draft it restrictively, and probably not very helpfully so far as Parliament is concerned, in order to exclude the type of cases which I have just mentioned, or we could draft it very widely and then almost certainly find ourselves unable to comply with the requirements in all cases. Certainly the Amendment as drafted at present would not allow for the circumstances on which I have just touched. That is why I think that, when Parliament has been able to study this whole area, it will come to be recognised that there is very considerable force in leaving the detailed arrangements for information to be ordered as a matter of procedure.

The flow of draft instruments from the Community is a new issue for Parliament and of a quite different order from anything we have previously experienced. As I said earlier, let us first decide the nature and manner of the Parliamentary examination and scrutiny which we wish to set up and then decide on the mechanical arrangements for providing information and how these can best be worked out. I suggest that these two aspects cannot sensibly be separated, and all logic suggests that we need to know what we want information for before laying down firm rules about the nature of the information and when it is to be provided.

Apart from that, as I have said, there are real objections: first, the technical—and I will not rest on that; secondly, that a statutory requirement is unnecessary; and thirdly, that the proposal is open to very real practical objections—those which I have touched on. There are difficulties apart from this general point of principle of embodying this requirement in Statute as the noble Lord's Amendment would require. For those reasons, while wishing to be as responsive as possible, and certainly recognising the importance of Parliamentary scrutiny here, I hope as fully as any noble Lord on either side of the House, I cannot myself advise your Lordships to accept this Amendment should noble Lords opposite wish to press it.


My Lords, perhaps the noble Earl the Leader of the House can give some advice to a Back-Bencher. In a Revising Chamber, as this is should a Back-Bencher, in supporting or not supporting an Amendment of this kind, take note of what has been said in Party political discussions behind the scenes as "promises" for the future? I think that that is a very important question. The noble Earl may smile, but I really should like to know. I enjoyed his detour. It is true that my heart sank when the noble Earl said that he had sympathy for the principle of the Amendment. I knew that we had lost that Amendment. But I should like to know, seriously, whether it is reasonable to expect a Back-Bencher who knows nothing about things that have been going on in the other place and this place, and between the two Front Benches, to take note of what has been said elsewhere in deciding whether this Amendment should or should not go on the Statute Book?


My Lords, there is hardly a question of procedure involved here. The noble Lord, Lord Bernstein, is very capable of exercising his own unfettered judgment in this matter.

6.36 p.m.


My Lords, I should like to offer a few comments as a member of the Brooke Committee on Delegated Legislation. Of course I would not presume to speak for the Committee. I am expressing only my own views. First of all, it is unfortunate that the all-Party ad hoc Committee was not set up, I am well aware of the strong feelings about entering the Common Market, and I am well aware that there are members of the official Opposition who did not wish to be committed to any action which appeared to recognise the possibility of our entry into the Common Market. Nevertheless, it is unfortunate, as I say, that this ad hoc Committee was not set up. I do not think the setting up of the Committee would or should have embarrassed any of those who are opposing this Bill. But when we come to the Amendment before us, I am bound to say that I have sympathy with its principle. I first of all asked myself: Is it inconsistent with the Treaty? There have been many Amendments which have appeared to me in one way or another inconsistent with the Treaty, and therefore I have felt that the right course for the supporters of the Bill was to oppose them. But here I find we are discussing an Amendment which I do not think is really inconsistent with the Treaty or with our entry into the Common Market.

Secondly, it has been pointed out by the noble Earl the Leader of the House that this Amendment is not primarily concerned with scrutiny—and it is scrutiny that was to be the main function of the ad hoc Committee. There may be something in that point, but I should have thought that the proposal about laying the proposals before Parliament before a decision is taken by the Council of Ministers was certainly closely related and ancillary to proper scrutiny. It has been suggested by the noble Earl that this Amendment is unnecessary. He convinced me, if I did not know it already, that the subject is complex. I appreciate that. But I think this is a case where, if it is the wish of Parliament that the principle contained in this Amendment should be accepted, the difficulties can be overcome. It is a problem for the draftsman, and I have not yet heard a sufficiently convincing argument that this Amendment should be rejected.

6.39 p.m.


My Lords, the noble Earl the Lord Privy Seal is always so agreeable in speaking at the Dispatch Box that I feel it is bad form to disagree with him. So perhaps I might start with one note of agreement, and that is in joining the general chorus of praise for the noble Lord, Lord Brooke of Cumnor, and his colleagues, including the noble Lord, Lord Wade. It is particularly gratifying that Lord Brooke should have added further lustre to what has been a most distinguished public career. Certainly all of us who are interested in constitutional processes must be deeply indebted to him and his colleagues for the work they did.

I confess that at this stage, and from time to time during our previous discussions, I have wondered whether those of us who have serious reservations about the Common Market have adopted the right strategy; and whether, instead of moving what were intended to be helpful contributions, designed to make the Community more widely acceptable in this country, we should not have used our time more effectively in a full-scale onslaught on the Community and everything that it stands for, because not one of the proposals that has come from either side of the House with the intention of making the Community more effective has been given really serious consideration by noble Lords on the Government Front Bench. I believe, and believe genuinely, that if the Government could sec their way to accept this Amendment it would make the chances of the Community succeeding infinitely greater than they are at the present time. I believe it is essential, in a move as important as this, to carry the British public with us, and if we can persuade the Government to accept this Amendment to-night I believe we shall be a more welcome member of the Community than would otherwise be the case, and that we shall have removed some of the really serious dangers that reside in a situation in which I believe the Government are acting against the wishes of the people whom they claim to represent.

I had so much sympathy with the reaction of my noble friend Lord Bernstein to the noble Earl the Lord Privy Seal: the noble Earl has always had great sympathy with what we were trying to do, and there was the usual parade of reasons as to why it was not appropriate to do what would otherwise be perfectly right. I know that it is exceptional to include a provision of this kind in a Statute, but we are in a most unusual situation. This Parliament has never before been faced with a measure of the constitutional importance of the European Communities Bill, and if ever there was a time for setting a precedent and perhaps doing something which was adventurous and unconventional it is when we have a Bill of this magnitude before us. I genuinely believe that it would be proper for the Government to make an exception in this case and to spell out in the Statute what they constantly reiterate that they believe in, namely, that there should be adequate consideration of what the Community is doing or is going to do. If we had an admission of strength on the part of the Government I think it would allay a great deal of anxiety in the country. When we were discussing the last Amendment we were told that there were certain words which were for domestic consumption or local consumption. I believe that these are words which, if they were inserted into the Bill, would be of profound importance from the domestic consumption point of view, and that they would allay the anxieties that people have on a very considerable scale.

I believe that we in this Parliament should not fall short of what other Parliaments in the Community have done in their own countries. We are here the Mother of Parliaments; I think we are respected all over the world for the contribution that we have made to the development of democratic and constitutional institutions, and I think it is a sad thing that we should be denying to ourselves powers which European Governments have given to their own legislatures.

In the excellent report of the Joint Select Committee, Mr. Whitelaw spoke on this subject, and I should like to take paragraph 10 of the memorandum that he submitted, in which he referred to certain types of implementing regulations which would require urgent decisions, and he then went on to say, But in most cases the decision making process will be more protracted, particularly when a proposal by the Commission involves new policy decisions, or will require a modification of national legislation. In such cases, the Commission will normally consult national experts and, in some circumstances, representatives of professional or producer or other interested organisations. before beginning to formulate proposals. There will then be the process of formal consultation with the Assembly and/or the Economic and Social Committee and/or other body required to be consulted. This process of consultation may result in the rejection of the original Commission proposal or in its substantial modification. The conclusion that one draws from the words of Mr. Whitelaw, who is a most experienced Minister, is that this process of consultation is going to be extremely "hit and miss". It seems to be left to the initiative of the Commission, or possibly the Council, to circulate the information and to gather opinions upon it. Of course the institutions of the Community, and indeed the Member Governments, I suppose to some extent will have a vested interest in not inciting too much consideration of proposals which are under consideration. It would be only human if they felt that the easier and the quicker the passage of the proposals, the better it would be.

I think we really ought to systematise this making available of proposals before they have actually become decisions of the Commission, or indeed of the Council. What my noble friend Lord Shackleton has directed himself to is included in paragraph 132 of the Brooke Report: Scrutiny, on behalf of Parliament, of draft Community instruments prepared by the Commission but not yet adopted by the Council. It seems to me to be right that we should as a Parliament decide that we have a right to express views on recommendations of the Commission before they become decisions of the Council. I hope very much that the noble Earl, Lord Jellicoe, in spite of his detailed comments upon the speech made by my noble friend Lord Shackleton, will respond to the appeal of the noble Lord, Lord Wade. and will be prepared to go rather further to-night than so far he has seen fit to do.

6.48 p.m.


My Lords, I hope I may be forgiven if I add a few short remarks before my noble friend the Leader of the House seeks leave to speak again, if he should so desire. As I am a sort of long-stop in these debates I shall not go over the whole ground again, but I should like to express a personal view, addressing my remarks both to the noble Lord who has just spoken and perhaps even more particularly to the noble Lord, Lord Wade.

It seems to me that the argument which has been put forward by the supporters of this Amendment is largely based upon the proposition that by inserting new words in this Statute one strengthens the Parliamentary scrutiny which may or may not be given effect to as a result of some development of our Committee procedure. I believe this to be fundamentally wrong, partly for the reasons which my noble friend has given and partly for reasons on which I should like to elaborate very shortly.

I think it is misleading and it is wrong, and perhaps I may say that the error, if I may be allowed to so call it, of the proposals contained in this Amendment stems precisely from the failure, to which my noble friend drew attention, to take up the Government's repeated offers of discussion of the actual problems involved in Parliamentary scrutiny in this new field. So far from thinking that this Amendment is adventurous or bold, it seems to me to be feeble and timid and to fail to understand the true nature of the problem. That is why I wish to reinforce my noble friend's objection to this Amendment, on the grounds of desirability.

We must bear in mind three things which we in Parliament must do when we joint the Community. The first is to secure an adequate flow of information in time. On paper this is the only point with which the Amendment is concerned, although it is not the most important one. The noble and learned Lord, Lord Stow Hill, put forward a powerful case for doing this, and it is of course vital that we do it. The question is not whether we have to do it but how we have to do it and how we can best do it. The second aspect to bear in mind is quite distinct from the first. It is the extent to which Parliament can control or modify the policy of Ministers inside the Community institutions. These two points are distinct but they are nevertheless closely related, because obviously if Parliament does not have an adequate flow of information—or even to some extent if the public does not have such an adequate flow—it will not be able to influence the policy of Ministers inside the Community institutions.

The third point—it is less important but only just so—is the need for a mechanism for distinguishing, in the enormous mass of detail with which we shall be presented, the important from the unimportant, otherwise we shall fail in both our other objectives. In other words, we shall be faced with a mass of information which the individual cannot digest and we may be attempting to control the unimportant instead of concentrating on the really important. These are the three objectives that we will try to secure. In proposing the Amendment the noble Lord, Lord Shackleton, generously admitted that the Government were as anxious as the Opposition to do this. We differ —it is a genuine difference—on how best it can be done.

A great deal of the information on the first point—the kind of information with which this Amendment deals; the completed draft—will be available through various methods already published. However, the point I particularly wish to make on this aspect is that that is much too late in time to enable Parliament to exercise effective control. It is vital—whether we are dealing with Parliamentary control, which is with what we are primarily concerned, or control by public opinion—that those affected, be they great industries, great trade unions or Parliament, should know when the policy is in the state of formation. That is what we want to do but that is precisely what cannot be done in the Statute and it is what the Amendment would not even attempt to do, for it lays down that completed drafts should be laid before Parliament in time. At that stage, when the drafts are complete, the public will have the information and it will be too late to exercise effective control.

The point made by my noble friend in this context is absolutely conclusive—namely, that if we try to rely on the Statute either we shall draft the Statute so restrictively that it will be useless or so widely that either we shall not be able to comply with the Statute or with our treaty obligations. If noble Lords opposite, and I suspect more particularly honourable Members in another place who belong to their Party, had taken up our offers of discussion, we could have gone into all this detail by now and have tackled what the noble and learned Lord. Lord Diplock, described as a new and urgent problem. It is new and urgent and we are not dealing with it. We are dragging our feet.

These Amendments are pure self-deception. It cannot be done by Statute. This Amendment is not merely unnecessary—though it is unnecessary, as my noble friend said—but this is something which it is intrinsically impossible to do by way of Statute and to attempt to do it in this way can only confuse and darken counsel. In other words—and this is my answer to the noble Lord, Lord Wade—it is not simply unnecessary and undesirable because it could be done in some other way, it is not a problem for the draftsman; it is a real problem of Parliamentary control which cannot be done in the way in which the proponents of the Amendment want to do it. It is for that reason and not because we are being unreasonable that we oppose this class of Amendment. We think they are wrong on their merits and that is why we ask the House to reject them.


My Lords, why is this possible in Germany but not possible in this country?


My Lords, I had intended to deal with that point but when speaking without notes it is easy to overlook an item. Germany is the only country which has attempted to deal with it in this way. Belgium, Luxembourg and Holland have not attempted it; I think France laid it down that it should be done but has not done it. I may be inaccurate in these details, because I am speaking impromptu, but I am sure this is broadly the picture. In Germany two factors are present which were never present here. The first and obvious difference is that in the Bundestag they already have in existence a very elaborate range of specialist committees. What has enabled them to do it is the existence of machinery of the kind that we should be setting up. Their constitutional arrangements are different, but what has made it possible and desirable there is the presence of the very thing that I am advocating here.

The other aspect is fundamental to one's understanding of the position. Most of these arrangements—I am not quite sure that I am right in relation to Germany, but I think I am—in the Community countries were made 10 to 12 years ago, and since then they have of course come to have 10 to 12 years of experience. When we start entering something which has been in existence for 10 or 12 years, we do not want to begin by committing mistakes of experience when we have 10 or 12 years' experience on which to draw. The Government believe that we are doing it the right way by what we propose, based on that 10 to 12 years of experience. That is my answer to the noble Lord, Lord Bernstein.


My Lords, before the noble and learned Lord the Lord Chancellor resumes his seat, because he has the right to speak only once, may I ask him to say why it would be impossible for us to devise this system of specialist committees in the light of the requirement in this Bill? I agree absolutely that we need these specialist committees, but it would have been inappropriate to go into a discussion about the situation before knowing whether the legislation would be passed. What we are trying to do by way of this Amendment, as I said in relation to an earlier similar Amendment, is to set down certain guidelines. Does the noble and learned Lord agree that with this guideline it would be essential for us to have these specialist committees? If so, there can be absolutely no objections to the Amendment.


On the contrary, my Lords, my whole argument was based on the proposition, which the House will either accept or reject, that with these specialist committees one could achieve one's purpose, with or without this Amendment, but that if one had this Amendment without these specialist committees one would be indulging in a pure waste of time. The noble Lord is putting it to me that we should indulge in the pure waste of time before indulging in the essential, and that is what I am asking the House to reject.


My Lords, we seem to be getting a lot of speeches from the Government tonight. I gather that the noble Earl may not seek the leave of the House to speak again. I assure him that if he should so seek our leave, we will gladly give it to him, though I might exercise the right to speak more than once in reply. The truth of the matter is that the Government, even if they could not accept this Amendment, could agree to an appropriate Amendment along these lines; and although both the noble Earl and the noble and learned Lord refrained from twitting the Opposition too much with failure to enter into talks at this stage—and my noble friend explains there are reasons why it is difficult—I see absolutely no relevance in that to the duty of Parliament in this matter. My noble friend Lord Bernstein, speaking, as he emphasised, as a Back-Bencher—and he does quite well there—said that what goes on through the usual channels is nothing to do with him; and that is a fundamental truth. No one is happier than I am when I am in the usual channels. I get on very well with the noble Earl and, on the whole, between us all we do not manage too badly. But at this moment we are talking about great issues for the nation, and the purport of my Amendment, deliberately restricted into a form that ensures that merely the most important material has to come before Parliament, seems to me to be one which, in principle, the Government ought to accept.

The noble and learned Lord said that he was not resting his case on the technical argument and he did not, but he gave the argument all the same. I think I must reply to that argument. He said that as drafted the effect of this Amendment would be that the proposals might only be brought before Parliament just before it was too late to do anything about it. May I say to the noble Lord that I have more confidence in the Governments of this country and the effectiveness of Parliament to carry out the requirements of Statutes. That would be a gross distortion of the intention of Parliament. But if he says that we cannot once the obligation is laid on Government in this matter, then it is perfectly easy to amend it. It is perfectly easy to provide in good time the sort of timetable—perhaps 20 days, or whatever it may be. It is possible, if he uses the argument in regard to urgency, to provide exceptions in the case of urgency. Parliament already has powers to do that; we have powers in certain circumstances to suspend our Standing Orders without notice. Parliament is always willing to give powers of that sort and they could be written into the Bill.

My Lords, we have had again quoted that great alibi, that fount of all wisdom, Lord Diplock. Nobody has a higher regard for Lord Diplock than I have, but the Government have so little confidence that all the time, whenever they get into difficulty they say, "Diplock says it is all right". With the greatest respect to the noble and learned Lord, Lord Diplock, who, like the noble Lord, Lord Wade, was a member of this Committee, in the matter of Parliamentary responsibility the opinion of ordinary Members of the House of Lords is as good as that of a Law Lord, however distinguished, who is inevitably, and properly, remote from the day-to-day Party political scene. I respect the opinions of and am very grateful to the noble Lord, Lord Wade. May I thank him also for his contribution to this admirable Report. But I hope that your Lordships will not just vote against this Amendment on the grounds that Diplock says it is unnecessary. Actually, we have not heard from Diplock tonight. I call him that because now that he has become a sort of legal authority one always drops initials out and one talks about Diplock or Hogg, or whatever it may be. It is really a form of compliment.

But this is not an argument within the context of Parliament. One of the consequences of our entering the Common Market is that it is likely to force a great deal of reform on the Parliamentary institution. It so happens that I think a great deal of reform and the development of committees is going to be necessary anyway, and a possible by-product of our going into Europe is that it may make us face up to that. But, my Lords, to argue that it is at this moment wrong for Parliament to lay an obligation on Government, even if we amend this wording, to ensure that this information is laid before Parliament and not is just available—there is a great difference between that and whether it is available—and for the noble Earl to say that it is totally unnecessary, I can only reply that I fundamentally disagree with him. I urge noble Lords opposite to recognise that we are one of the two Houses of Parliament and that this is the kind of matter on which Parliament ought to lay down its requirements.

My Lords, I do not wish to take up much more time. Last night a number of noble Lords faced with a geographical problem of a different kind showed a degree of independence and put Lymington back into Hampshire. To-day we are dealing with something of very much greater importance. It would not be appropriate perhaps for me to attempt the eloquence of great Parliamentary orators who have reminded Parliament, sometimes unsuccessfully, that however inconvenient it was they had an obligation in Parliamentary terms. There is concern on the noble Earl's side of the House at the refusal of the Government to go any way towards accepting Amendments. If they were prepared to say—and I appreciate they could not—"Look, in other circumstances we might be willing to accept this Amendment but because we have to get this Bill through by a certain date we are not going to endanger it", I say to your Lordships that that is not an argument that we ought to accept. I begin to see a concern among noble Lords opposite, which took some of them into the Lobbies on the Committee stage, and I hope that on this occasion they will support an Amendment which will not harm our entry into Europe but which will help. Even if it were only a bit of window dressing it would help. Of course, it lays down a fundamental principle, a principle which could have been put into a Preamble or which could have been put in another form, but in this case it actually lays an obligation on Government. I hope, therefore—though I do not hope very much—that your Lordships will realise that my position is clear. I genuinely believe that we have a duty and that that duty is to put some provision like this into this Bill.


My Lords, I do not want to prolong this debate, but having worked for a number of years in an international economic organisation I must say that my mind boggles at the practical consequences of an Amendment of this sort to the Bill we are now considering. What actually happens in real life is that a proposal comes along in any of these organisations; somebody else comes along with an Amendment to it; the delegation sends telegrams and then telephones; and the Secretary General then comes along with another bright idea and the whole thing is in a state of

flux. I do not think it is practicable to carry out in real life an Amendment which says: Any proposal by one of the Community institutions", and so on. My mind boggles at the amount of work and confusion which this would be bound to create in Parliament.


My Lords, may I interrupt the noble Lord? I do not think he can have heard much of the debate. The numbers involved are comparatively small, as he will see if he consults the report of the Joint Select Committee; and, secondly, the Government say that they will do this anyway, even though he says that it cannot be done. They merely say they will not do it by Statute.


My Lords, I was about to say, if the noble Lord had been kind enough to hear me out, that I think that if we had a number of Committees there would be great force in the Committees' being consulted informally. But I feel that we should be careful not to put Parliament into the position of having to do work which is rightly done by the Civil Service. I think it is for the Civil Service to sort out these proposals and counter-proposals. Obviously the Government must have the support of Parliament and I think should properly consult Parliament at the right moment but it should not have a statutory obligation to do so in the form of this Amendment.

7.11 p.m.

On Question, Whether the said Amendment (No. 4) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 127.

Addison, V. Granville of Eye, L. Seear, Bs.
Auckland, L. Greenwood of Rossendale, L. Shackleton, L.
Balogh, L. Hale, L. Shepherd, L.
Beaumont of Whitley, L. Hoy, L. Slater, L.
Bernstein, L. Hughes, L. Stow Hill, L.
Beswick, L. Lauderdale, E. Strabolgi, L.
Blyton, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Tanlaw, L.
Brockway, L. Taylor of Mansfield, L.
Buckinghamshire, E. Maelor, L. Wade, L.
Champion, L. Milner of Leeds, L. Watkins, L.
de Clifford. L. Norwich, V. Wigg, L.
Evans of Hungershall, L. Phillips, Bs. Wright of Ashton under
Gaitskell, Bs. Platt, L. Lyne, L.
Gardiner, L. Portal of Hungerford, Bs. Wynne-Jones, L.
Garnsworthy, L. [Teller.] Rhodes, L.
Aberdare, L. Gainford, L. Napier and Ettrick, L.
Ailwyn, L. Gisborough, L. Northchurch, Bs.
Albemarle, E. Gore-Booth, L. Nugent of Guildford, L.
Amherst of Hackney, L. Goschen, V. Polwarth, L.
Amory, V. Gowrie, E. Radnor, E.
Arbuthnott, V. Grimston of Westbury, L. Ranfurly, E.
Balerno, L. Grimthorpe, L. Rankeillour, L.
Balfour, E. Hailes, L. Reay, L.
Barnby, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Redmayne, L.
Bathurst, E. Reigate, L.
Beauchamp, E. Hankey, L. Remnant, L.
Beaumont, L. Harvey of Prestbury, L. Rothermere, V.
Belstead, L. Harvey of Tasburgh, L. Runciman of Doxford, V.
Berkeley, Bs. Hastings, L. St. Just, L.
Blake, L. Hatherton, L. Saint Oswald, L.
Braye, L. Hawke, L. Sandford, L.
Brentford, V. Hemingford, L. Sandys, L.
Brooke of Cumnor, L. Hives, L. Savile, E.
Carrington, L. Hood, V. Selkirk, E.
Chesham, L. Ironside, L. Sempill, Ly.
Colville of Culross, V. Jellicoe, E. (L. Privy Seal.) Shaftesbury, E.
Cork and Orrery, E. Kemsley, V. Sherfield, L.
Cottesloe, L. Kilmarnock, L. Stonehaven, V.
Courtown, E. Kindersley, L. Strathcarron, L.
Craigavon, V. Lansdowne, M. Strathclyde, L.
Craigmyle, L. Latymer, L. Strathcona and Mount Royal,
Craigton, L. Leicester, E. L.
Daventry, V. Liimerick, E. Suffield, L.
Davidson, V. Loudoun, C. Swansea, L.
Denham, L. [Teller.] Luke, L. Townshend, M.
Derwent, L. McFadzean, L. Trefgarne, L.
Drumalbyn, L. Macleod of Borve, Bs. Trevelyan, L.
Dundee, E. Mansfield, E. Tweedsmuir, L.
Dundonald, E. Massereene and Ferrard, V. Tweedsmuir of Belhelvie, Bs.
Ebbisham, L. May, L. Vernon, L.
Effingham, E. Mersey, V. Vivian. L.
Elles, Bs. Milverton, L. Waldegrave, E.
Emmet of Amberley, Bs. Molson, L. Ward of Witley, V.
Falmouth, V. Monk Bretton, L. Windlesham, L.
Ferrers, E. Monsell, V. Wolverton, L.
Fisher, L. Mottistone, L. Wynford, L.
Fortescue, E. Mowbray and Stourton, L. [Teller.] Yarborough, E.
Fraser of Lonsdale, L. Young, Bs.
Gage, V.

Resolved in the negative, and Amendment disagreed to accordingly.

7.19 p.m.

LORD BESWICK moved Amendment No. 5: Page 2, line 33, at end insert— ("Provided that nothing in this Act shall be held to detract from the ultimate sovereignty or supremacy of Parliament.").

The noble Lord said: My Lords, I am here asking Her Majesty's Government to put into the Bill something which they have assured us repeatedly is inherent in the whole situation within which this Bill is brought about. We have, of course, discussed this issue before; indeed, the noble and learned Lord the Lord Chancellor will say we have discussed it too often before. But we have the advantage this evening of looking at it a little earlier in our deliberations, and possibly we might discuss it in a somewhat better spirit. I remember on the last occasion the noble and learned Lord was, if I may say so, a little tired, and it may be that I was not over courteous to him. In any case we did not come very close together in our opinions. I am hoping that now we can get that much closer. Certainly I think I can claim that the wording of the Amendment I am now moving, which makes no reference to repeal of the Act, is rather more acceptable.

The House will recall, as I have said, that we have had assurances before that the sovereignty of our Parliament will be unimpaired if this Bill goes through. On August 7 we had a very impressive and, as he described it, a very authoritative assurance repeated by the noble and learned Lord the Lord Chancellor. I refer to what he said at column 912 of Hansard August 7. I recognised the authority and I accepted it, but with all proper deference to the noble and learned Lord the Lord Chancellor the words he used at column 1230 on July 25 were such as to give rise to doubts. I am therefore again trying to gat something clear written into the Bill.

I paid tribute on August 7 to the patience with which my arguments were received by the noble Viscount, Lord Colville of Culross, and I was grateful to the noble Viscount and to the noble and learned Lord, Lord Diplock, for the exposition they gave to me of the processes of legal construction by which apparently two opposing propositions can be reconciled. But having paid tribute to the authority of the opinions quoted, the incontrovertible fact remains that more and more people in Britain now doubt the infallibility of legal opinion expressed in this way. We have seen the spectacle so recently of decisions solemnly reached by one court being overturned by another court; we have had an authority of impeccable respectability giving one view, and then another authority of equal respectability giving a completely different opinion. I would go so far as to say that after certain recent decisions the courts of this country have never been so low in the estimation of the ordinary general public. That is relevant in so far as it may be that the reason for this indecision in the courts of our land is that the legislation itself was at fault. It may be that it was not the courts whom we should blame or the lawyers, but the legislation which they had to interpret. It may be that the legislation, held in this and in the other place by Ministers of any political complexion to be adequate and clearly fulfilling its function, in the event in successive courts has fallen short of the standard claimed for it. Therefore, I am suggesting that words emphasising the ultimate sovereignty of Parliament cannot be superfluous.

On Committee I ventured to give examples of the conflict in Community States between domestic and Community law. It seemed to me that there was the difficulty that we have examples, which I gave, where domestic and Community law conflicted. I was interested to see in the P.E.P. publication by Mr. Niblock other examples of this kind of conflict. May I read from Mr. Niblock's publication? He says: In Italy a judgment which was handed down by the Constitutional Court in 1964, and which put Community law on a par with national law, led to a serious split between Community and Italian lawyers. The case arose over the law nationalising the Italian electricity industry and the consistency of that law with the E.E.C. Treaty. The Italian Court recognised that Article 11 of the Constitution permitted a limitation of the sovereign powers of the Parliament but denied that this Article of itself conferred any special or privileged status on Community law. From this it followed that, in the event of a conflict between a Community rule and a subsequent national law, the latter would prevail. The same conclusion was being reached at about the same time in other Italian courts. The result was a considerable controversy in which the European Court of Justice became embroiled.

If we have this conflict in an area where it is held that there can be no conflict in countries where they have written Constitutions, then I suggest that it is all the more important that we have clearly stated in our legislation that without doubt Parliament is ultimately sovereign.

When we discussed this matter before it was stated by the noble Lord, Lord Gladwyn, that he was ready to give up a degree of sovereignty. Indeed, he wanted to go all the way so far as sovereignty was concerned. I think the view was expressed in the House that if that was the case, and that was what we were setting out to do, then we needed an entirely different piece of legislation, an entirely different Bill before us. The majority of noble Lords on that occasion accepted the view that the Government not only had no mandate for going into the Community, but they certainly had never claimed on any occasion that they were prepared to give up the ultimate sovereignty of Parliament. I am not asking that we should prevent ourselves from ceding in certain areas a measure of sovereignty; I am saying that we should make clear in the ultimate that Parliament is sovereign, and that what this Parliament of this country decides shall be done will in fact be done. That is something which would give an assurance to the general public of this country which, at the moment, they do not feel.

I would suggest that in the interests of the Government, the interests of the Bill, and the interests of our accession to this Community, it would be good to have written into the Bill these clear words establishing, so that the general public can understand, the ultimate sovereignty of our Parliament. My Lords, I beg to move.

7.35 p.m.


My Lords, it falls to me to reply to this Amendment, and this enables me to thank the noble Lord, Lord Beswick, for the amicable frame of mind in which he proposed it. If on a previous occasion we were both a little tired, I hope that that fact has not marred the even course of our politically opposed relations, which now extend over a period of, I think, more than 40 years, and possibly longer, in at least three separate fora. So I am happy to say that I shall respond in the same amicable spirit that inspired his own speech. All the same, I am a little sorry that he spoke in general about the standing of the courts. The one thing which has never been devalued in this country during the whole of my life is the reputation for independence and impartiality of British justice. I believe that to be true. I have noticed of late a tendency of people who lose cases to blame the judge as well as opposing counsel. But that has nothing to do with this Amendment, and I should be straying too far from its subject matter if I were to inquire into the causes of that, the result of which I regret.

Let me deal simply with the argument which the noble Lord has presented, and I think I can do it rather shortly. His argument, if I understand it, is this. "You", he says, addressing the Government, "have always told us that this Bill does not interfere with the sovereignty of Parliament. Then why not say so in the Bill, and then a great number of people will be satisfied and reassured?" I do not myself know why they should be reassured, for reasons that I shall give, but I hope to satisfy the noble Lord not merely that the Amendment is unnecessary—which on that argument it clearly is—except simply for purposes of presentation, but that it is also constitutionally objectionable.

The point that I have tried to get across on every occasion we have discussed this subject—and we have now discussed it a number of times—and I also tried to get it across when the noble Earl, Lord Arran, was presenting his Bill of Rights, is that it is not possible to derogate from the sovereignty of Parliament, and that that is one of the fundamental safeguards of our liberties. It is so because Parliament cannot bind its successors. It is not that it never does, or ought not to do so very often: it cannot bind its successors, because this is the fundamental safeguard of the Constitution in this country. Obviously, when Parliament has given independence to another country then to that extent it abrogates its sovereignty, although, no doubt, if Parliament chose to do the absurd and attempted to repeal the Act of independence, the courts in this country might be bound to give effect to the repeal. But if you give independence to a country that is the end of the matter as regards that new country, and international law recognises its separate existence and the absence of the territorial jurisdiction of our Parliament over it. But Parliament cannot bind its successors. This is one of the great safeguards of our liberties on which the rock of our Constitution is founded. This is the doctrine which I have been trying to express, and which predecessors of mine have been trying to express, both in this and in other contexts when it has been suggested that Parliamentary sovereignty in that sense was being abrogated.

The vice of the present Amendment is that it suggests the contrary of that. If you think it necessary to put into a Bill specifically that nothing in this Bill shall derogate from the sovereignty of Parliament, it suggests that that is precisely what Parliament can do. In other words, it tends to undermine and to cast doubt upon a fundamental constitutional doctrine which is absolutely essential to our liberties. I therefore submit to the House that this Amendment is not merely unnecessary but constitutionally vicious, because it suggests that it is possible for one Parliament to do that which no Parliament in this country is permitted to do, and which might be destructive of our liberties if it sought to do so. There have been times in our constitutional history when subsequent Parliaments have had to undo work of previous Parliaments. But it would be a very serious matter indeed if, every time we wanted to retain the right to undo what a previous Parliament had done, we had to insert it in a Statute, or if we were ever by actions or words of ours to suggest that it would be done.

The other point which I should like to make about this Amendment, and which also goes to its desirability, is on its presentation. I fully acknowledge that the noble Lord has put this Amendment in a more acceptable form than the Amendment which he proposed in Committee, of which this is a revised edition. However, from the presentational point of view, it still has part of the inherent political vice which that earlier Amendment had. I ventured—and, perhaps this is what offended the noble Lord earlier—to put a point in the form of a parable last time, but it is very important for those countries which have controlled, limited or written Constitutions to get used to the fact that we do not have a written Constitution. Instead of a written Constitution we have the sovereignty of Parliament. That is our safeguard, just as their written Constitution is theirs.

Faced with this fact—and it has been the case in dealing with our future partners in the Common Market; I think my colleagues who were concerned with the negotiations would bear it out—their suspicions of a country which had to start by admitting that it could repeal legislation without any kind of limitation at all upon its power to do so had to be overcome. If we insert in this Act of Parliament, as it will be, the words which it is proposed to insert, not only would we be casting doubt upon our own fundamental safeguard, but we would be suggesting to the other countries precisely that we had it in mind to do that which we ought not to do if we enter into this contract in good faith, and because we intend this relationship to be a permanent relationship.

I should hope very much that the noble Lord would not find it necessary to press this Amendment to a Division. I hope my reasons have been satisfactory to him. He has accused us more than once of being unwilling to accept any Amendments. We are of course far apart on many issues in this matter, but I have been in doubt from time to time as to whether the Opposition are prepared to accept any arguments. I hope that on this occasion the noble Lord will accept the argument and get rid of those doubts which many of us are beginning sincerely to entertain. I hope that the noble Lord will therefore find it possible to let this Amendment go by default. If not, I should advise the House to reject it.

7.39 p.m.


My Lords, I find it a little difficult to rise immediately after the noble and learned Lord, because whereas he is indeed a high expert in the field of law I am afraid that I am in no sense an expert in the field of law. I listened with great interest to his statement which was clear and to a large extent convincing, yet I am left with just a shadow of doubt. So perhaps I may be allowed to explain why, and I have no doubt that it can then be made perfectly clear to me and to the House where I am wrong.

In listening to the noble and learned Lord, I wondered whether he was right in referring to this Amendment as being constitutionally objectionable, because when I look at the clause in the Bill to which this Amendment is attached the position seems to me to be rather different from what was suggested by the noble and learned Lord the Lord Chancellor. His argument, I should have thought, would have applied perfectly well if one were dealing with legislation which was initiated in this country; for it is perfectly clear that no Parliament can commit a future Parliament. But here we are dealing not with the particular Acts of any Parliament, but rather with continuing legislation which is produced from outside Parliament altogether. When one reads Clause 2(1), one sees that it says: All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; & This is a continuing thing. It is something which goes on indefinitely, and something which is being passed by some body outside this country. In other words, we are not committing future Parliaments by saying that any of these things must, however, be of such a nature that nothing & shall be held to detract from the ultimate sovereignty or supremacy of Parliament". I should have thought that this is a perfectly reasonable addendum to put in, and that it does not in the least suggest that Parliament normally has no right to alter what had been done by a previous Parliament. On the contrary the position in fact seems to be the exact opposite. What we are saying is that Parliament always has the right, that Parliament has the ultimate authority, and that it has the right, despite what is said in this Bill. I would have thought, that, so far from this Amendment being an attempt to commit Parliaments in the future, it was doing the exact opposite. Therefore I found it a little difficult to follow the argument of the noble and learned Lord.


My Lords, I hope it will not disappoint the Lord Chancellor, for whom I have a warm affection, if I say that I do not accept the arguments that he put forward earlier this evening, and I must explain my attitude to my noble friend's Amendment. If I may say so, I thought that the noble and learned Lord who sits on the Woolsack got a little too excited about my noble friend's references to the courts. What I think my noble friend had in mind was that if the Government produce an Act like the Industrial Relations Act and then put upon the Law Courts the responsibility for applying legislation in a field where legislation of that type is not appropriate, then there is bitterness against the courts involved and possibly a corresponding lack of respect for the Judiciary as a whole.

I do not think there is any doubt at all that there has been a good deal of hitter feeling against the courts during the last few weeks which I hope it will be possible to dispel—because nobody can take any pleasure in a situation in which one of the most valuable institutions in the country is getting itself into a position where is can be criticised, and is criticised on a substantial scale. But if we add to this present (shall I say?) disenchantment a situation in which our own citizens become subject to laws which are made somewhere else—laws which mean that they can be fined or even sent to prison for criminal offences which have been created, not in this House or in another place but by a body remote on the Continent of Europe—that is not going to make the public any more favourably disposed to the Judiciary than they are at the present time. I think that many members of Her Majesty's Judiciary would find it unpalatable to have to apply in our own courts laws which had not originated from the Legislature of our own country.

On this question of whether it is possible to derogate from the sovereignty of Parliament and whether one Parliament can bind its successors, I should like to refer to the case of Blackburn v. Attorney General, which was heard in June, 1971. Perhaps I should explain to those of your Lordships who are not familiar with the case that Mr. Raymond Blackburn had taken the view that the Government, if they signed the Treaty of Rome. would surrender in part the sovereignty of the Crown in Parliament, and would surrender it for ever; and he tried to stop the Government because, he said, the Government would be acting in breach of the law. The Attorney General, I think very properly, took the view that there was no reasonable cause of action, and Master Jacob and Mr. Justice Eveleigh struck out the statements of claim. Then Mr. Blackburn appealed to the Court of Appeal and the vase was heard by Lord Denning, among others. The Master of the Rolls, having recited Mr. Blackburn's point of view, said: Much of what Mr. Blackburn says is quite correct. It does appear that if this country should go into the Common Market and sign the Treaty of Rome it means that we will have taken a step which is irreversible. The sovereignty of these islands will thenceforward be limited. It will not be ours alone but will be shared with others". Lord Denning went on to quote from the decision by the Court of Justice of the European Communities: & the member-states, albeit within limited spheres, have restricted their sovereign rights and created a body of law applicable both to their nationals and to themselves'". Later on in his most interesting judgment Lord Denning spoke of the question of one Parliament tying its successors. He said: We have all been brought up to believe that, in legal theory, one Parliament cannot bind another and that no Act is irreversible". Then he recites the arguments about the Statute of Westminster, which I think were the ones which the noble and learned Lord had in mind, and says, if I may paraphrase him, that the situation really has been somewhat eroded since 1931. Then he says: What are the realities here? If Her Majesty's Ministers sign this treaty and Parliament enacts provisions to implement it, I do not envisage that Parliament would afterwards go back on it and try to withdraw from it. But, if Parliament should do so, then I say we will consider that event when it happens. We shall then say whether Parliament can lawfully do it or not". It seems to me that if we go into the Community and accept all the obligations which membership of the Community imposes upon us, and if we pass this Bill, as I am afraid it looks as though your Lordships' House is going to, it really means that although technically we cannot bind our successors, we can assert our sovereignty once again only by breaking the word that we have given, by breaking the contract with our other partners in the European Community, and by in fact behaving in a way which I think would bring very little credit upon this country. So although perhaps legally we are not binding our successors, in practice we are; and unless we can put in this Bill the words that my noble friend Lord Beswick has proposed, I believe that there will be genuine and continuing anxiety. The Government's reluctance to make this gesture to very strong public feeling will, I think, only increase the measure of discontent which exists and increase the suspicion which so many of us have of the Community as an institution.


My Lords, may I begin by thanking the noble and learned Lord the Lord Chancellor for the way in which he dealt with my arguments? I must say that at first I thought he had a point when he said that, whereas we complain that the Government apparently are impervious to our arguments, on the other hand there is a certain amount of evidence to suggest that so far, we have not accepted the arguments put forward from the Government Benches. On the face of it, this would appear to be a reasonable point to make; but I put it to the noble and learned Lord that it is not quite as reasonable as it appears. The highly selective list of Amendments now on the Marshalled List are selective only because we have "pruned" those Amendments on which we thought the arguments put forward from the Government Benches were reasonable. If we stick to the Amendments that remain on the Marshalled List, it is because they are selected and because we feel that our case on these particular Amendments is specially sound. So I say, I think reasonably, that his point is not quite so fair as he thought.

I listened to what he had to say on this question of sovereignty; and if I may be allowed to say so, I think that the doctrine that he put to us, the doctrine which he has put to us on previous occasions, would be quite beyond controversy if it were applying to a situation such as we have known in this country up to the present time. But as from the time we go into the European Community, the situation will be quite changed : the sovereignty of Parliament will be subjected to a constant process of erosion. Indeed, this is what the supporters of the Community say, in terms. I have referred before to an article which appeared in the Modern Law Review by the legal adviser to the Community in which he says: A long-term process of integration as outlined by the Treaty would be impossible if not guided and fostered by a continually developing Community law, by a progressive Community legal integration. Thus, even in legal fields the Treaty displays its own in herent dynamism. This is the dynamism theory: that gradually you build up a body of law, you extend the authority of the Commission and slowly but certainly the sovereignty of the individual States disappears. This is what, by intent and in terms, some people responsible for the drafting of a good deal of this Constitution seek and pursue.

In those circumstances I do not believe that the case for the unwritten Constitution is as sound as the noble and learned Lord makes out. As I have said, if all legislation emanated from the Parliament here his doctrine would be beyond challenge; but as we get this developing system of law from Brussels we shall find that we are without the protection of a written Constitution and that we shall be in a weaker position, a less favourable position, than those countries that have a written Constitution. I have also ventured to say that even in those countries where they have a written Constitution, although it is said by some lawyers of distinction that domestic, municipal law will prevail, nevertheless we see in the cases I have quoted that there is a conflict and that it is uncertain whether municipal law or Community law is the superior. I am trying to put to noble Lords opposite that they would be well advised—and this is the case that my noble friend Lord Greenwood put so well—in their own interests to have words of this kind in the Bill. It will then no longer be possible to make the criticisms that are now made.

The largest postbag I have had for many years came as a result of a letter which appeared in one of the national

newspapers recently in which I mentioned the word "sovereignty". Every one of those letters—not, I suspect, from members of my own political Party—was concerned with this question of sovereignty. There is this fear and doubt, this reasonable fear and doubt, in the minds of people, and I suggest that it would put the matter rather more clearly, rather more certainly, and give assurance if the words of my Amendment were accepted. Believing that, I shall ask noble Lords to support me in the Division Lobby.

7.55 p.m.

On Question, Whether the said Amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 22; Not-Contents, 111.

Addison, V. Hoy, L. Platt, L.
Beswick, L. Hughes, L. Rhodes, L.
Blyton, L. Lauderdale, E. Shackleton, L.
Buckinghamshire, E. Llewelyn-Davies of Hastoe, Bs. Strabolgi, L. [Teller.]
Champion, L. Maelor, L. Taylor of Mansfield, L.
de Clifford, L. Milner of Leeds, L. [Teller.] Watkins, L.
Garnsworthy, L. Phillips, Bs. Wynne-Jones, L.
Greenwood of Rossendale, L.
Aberdare, L. Emmet of Amberley, Bs. Mountgarret, V. [Teller.]
Ailwyn, L. Falmouth, V. Northchurch, Bs.
Albemarle, E. Ferrers, E. Nugent of Guildford, L.
Aldenham, L. Fortescue, E. Polwarth, L.
Amory, V. Fraser of Lonsdale, L. Radnor, E.
Arbuthnott, V. Gainford, L. Rankeillour, L.
Astor of Hever, L. Gisborough, L. Reay, L.
Auckland, L. Goschen, V. Redmayne, L.
Balerno, L. Gowrie, E. Reigate, L.
Balfour, E. Grimston of Westbury, L. Remnant, L.
Barnby, L. Hailes, L. Rochdale, V.
Bathurst, E. Hailsham of Saint Marylebone, L. (L. Chancellor.) Runciman of Doxford, V.
Beauchamp, E. St. Just, L.
Beaumont, L. Hankey, L. Sandford, L.
Beaumont of Whitley, L. Hastings, L. Sandys, L.
Belstead, L. Hatherton, L. Savile, L.
Berkeley, Bs. Hawke, L. Seear, Bs.
Blake, L. Hemingford, L. Selkirk, E.
Brentford, V. Hewlett, L. Sempill, Ly.
Brooke of Cumnor, L. Hives, L. Shaftesbury, E.
Carrington, L. Hood, V. Stonehaven, V.
Colville of Culross, V. Jellicoe, E. (L. Privy Seal.) Strathclyde, L.
Cork and Orrery, E. Kemsley, V. Strathcona and Mount Royal, L.
Cottesloe, L. Killearn, L.
Courtown, E. Kinnoull, E. Suffield, L.
Craigmyle, L. Landsdowne, M. Swansea, L.
Craigton, L. Latymer, L. Tanlaw, L.
Croft, L. Leicester, E. Townshend, M.
Davidson, V. Limerick, E. Trefgarne, L.
Denham, L. [Teller.] Macleod of Borve, Bs. Trevelyan, L.
Derwent, L. Massereene and Ferrard, V. Tweedsmuir, L.
Digby, L. May, L. Tweedsmuir of Belhelvie, Bs.
Ebbisham, L. Milverton, L. Vivian, L.
Elles, Bs. Molson, L. Wade, L.
Elliot of Harwood, Bs. Monk Bretton, L. Waldegrave, E.
Ward of Witley, V. Wolverton, L. Young, Bs.
Westwood, L. Wynford, L. Zuckerman, L.
Windlesham, L. Yarborough, E.

Resolved in the negative, and Amendment disagreed to accordingly.

8.4 p.m.

LORD SHACKLETON moved Amendment No. 6: Page 2, line 36, leave out ("or department").

The noble Lord said: My Lords, Amendments Nos. 7 and 8 are consequential on this Amendment, which is one of the few Amendments which we put down in precisely the same form on Committee. I hope that the House will accept that there was a reason for this. We have expressed concern that in this area it will be possible for Departments as opposed to Ministers to make Orders. If I understand the position correctly, to be able to make Orders it will be necessary to specify them by Statutory Instrument and therefore Parliament will have a control. None the less, perhaps because we were exhausted on the last occasion this was one of the less satisfactory discussions. I accused the noble Earl, Lord Jellicoe, of not having done his homework because he could not answer my questions the first time. The noble Viscount, Lord Colville of Culross, hunted under the table and found an example, and by the time that the noble Earl wound up the debate the communications had supplied him with a number of examples and he suggested I would like to do my homework. I am hound to say that I have not done it. but the Government have not given us enough "hols" in which to do our holiday tasks.

This is a not unimportant point. I thought that a number of the examples which the noble Earl gave on the last occasion were those to which the Order procedure would not apply because of limitations imposed under Schedule 2. I may be wrong, but no doubt the noble Earl has done his holiday task and can answer this point. It is just one of these smallish points, and in a sense I am probing again. I feel that we might have a further exposition which would be comprehensive and which might illustrate those examples to be found on the Statute Book, which I am told is studded with such examples which would bear directly on the point and which, following the research that has been done by the Cabinet Office, and perhaps the Foreign Office, are examples of the sort of Statutory Instruments which led to the evidence put before the Brooke Committee. It would be helpful to have certain examples of the type of matter that would be made by a Department.

Secondly—I apologise for my ignorance, but the whole of delegated legislation is an immensely complicated field—I would like to be told the sort of Orders that will be made. For instance, is it possible that a Government Department could make an Order even though the Minister was ultimately responsible? I understand that Government Departments do make Orders with which a Minister is not concerned. If every Order that is made by, say, Customs, has to receive Ministerial approval of some kind it would be helpful if we could be told. I do not think we were told this on the last occasion. Furthermore, if it has to have Ministerial approval it would seem that in regard to Orders made under Clause 2 and in connection with the Communities there is a case that the Orders should in one way or another be presented in the name of the Minister.

These are not necessarily major points, but this is a rather important area. I see that the noble Earl, Lord Limerick, is present. He presides over part of the old Board of Trade. I am not clear as to whether the Board still makes Orders or whether, as it now rests with the, Secretary of State, this is no longer necessary. But could we have a little more information about the sort of Orders likely to be made by Departments rather than Ministers and the extent to which Ministerial agreement is necessary? I realise that these Orders relate to enforceable obligations which are not directly applicable; but could we have a rather clearer, coherent account from refreshed Ministers'? I would not say that that would remove some of our alarms about their obstinate refusal to allow Parliamentary consultation to take place, but it would be a small contribution to the understanding of this matter.

8.10 p.m.


My Lords, I was, I must confess, not only a little surprised but also a trifle disappointed to see that noble Lords opposite had resurrected these particular Amendments. During a short spell in the sun at Corfu—that sun that shines on just and unjust alike—I did in fact, as the noble Lord, Lord Shackleton, suggested, do a little homework. I read through the report of our Committee stage proceedings on this point, and with all due modesty I thought that I had passed Lord Shackleton's viva on this Amendment with flying colours.


My Lords, if I may interrupt the noble Earl, I may say that I specifically told him at the time that he had failed the test.


My Lords, I know that is what the noble Lord, Lord Shackleton, said, but on that occasion I think he was rather off form as a tutor. In any case, viewing myself both in statu pupillari and as a tutor, I would have given myself, looking at this objectively, somewhere between Beta plus and Alpha minus on that occasion. I would not put it higher than that. But so much for that, my Lords. Now I will try to give the noble Lord, Lord Shackleton, the clear, coherent and reinvigorated reply for which he has called.

First, I should perhaps remind your Lordships that we are dealing in this subsection with a power to make Orders in Council and regulations in a manner with which by now I think we are all familiar, some of us perhaps too familiar—powers exercisable by Statutory Instrument, Schedule 2 paragraph 2(1), and subject to the provision about Parliamentary control which is set out in that Schedule. This subordinate legislation will be part of our domestic legislation and will be made in accordance with our normal domestic procedures.

The noble Lord, Lord Shackleton, asked on a previous occasion, and I think it is necessary for me to answer this before answering the specific questions that he has just put to me, why and whether Departments should be enabled to have this power and how it will operate. I can only reiterate what I said earlier; that is, to explain that the object of this subsection is to confer a general power which would be exercisable to deal with all reasonable foreseeable needs. As I think we all know, there are certain Departments which, for reasons deep in cur Constitution and embedded in our history, are in the direct charge of boards of commissioners instead of a single Minister as is the normal case—Customs and Excise. Inland Revenue, the old Board of Trade and so on. But this does not mean that Departments like that fall outside the normal convention of Ministerial responsibility. They act on behalf of the Crown, and Her Majesty's Ministers are responsible to Parliament for what they do and how they act. In every case it will be possible to call on Ministers to justify to Parliament the case for departmental regulations on any particular matter.

When a Statutory Instrument is made by a Department with no Ministerial head the practice is for the Instrument to be signed by one or more of the board or administering body. In certain cases there are express statutory provisions about the signature. Regulations made by the Board of Customs and Excise are signed by one commissioner, Treasury regulations or Orders are signed by two Lords Commissioners, two Treasury Ministers. The Bill would be incomplete if its provisions did not extend to such Departments and include them, as well as all Departments and Ministers, because we are making a general rather than a specific provision and the power is expressed as potentially exercisable by any Department as by any Minister. I submit that what is sauce for the Ministerial goose here is also sauce for the Departmental gander.

But, my Lords, it is precisely because the present provision must of necessity be in those general terms, in unusually general and wide terms, that we are including an unusual and special safeguard of requiring a designating Order in Council before any regulation can be made. No Department will have any power to make regulations unless it has been specifically given that power for a particular purpose in an Order in Council which will he subject to Parliamentary control, under either the Negative or the Affirmative Resolution procedure. That is made absolutely clear in Clause 2(2) on page 3 of the Bill, lines 10 to 15.

There is therefore no reason to fear, as I think the noble Lord, Lord Shackle-ton, was somewhat inclined to suggest during the Committee stage, that a Department may improperly be implementing Community directives concerned with fundamental issues of major importance. The designation Order in Council will have to say for what purpose the Department concerned is to be designated to make the regulation. If Parliament is unhappy about these purposes, or about the manner in which the regulations deal with them, it will be open to it to express its disquiet at both points of time and in accordance with the normal Parliamentary procedure. The regulations themselves will be subject to the Negative or the Affirmative Resolution procedure under Schedule 2 and can therefore be annulled or approved by either House of Parliament. Accordingly there is a double safeguard built into the Bill. It is my feeling that it is right that we should have built in this double safeguard because of the unusually wide and general provisions. It is necessary that they should be wide, but also I think it desirable that we should have this double safeguard embedded firmly in the Bill. The Bill provides Departments with a potential power, but this cannot be translated into action without the implicit or explicit consent of Parliament, as I have said, exercised on two separate occasions. I hope that that explanation by way of general background will satisfy the noble Lord.

There were, I think, two or three specific questions on which the noble Lord, Lord Shackleton, asked me to give an explanation. First, he twitted me with the examples I gave earlier of departmental regulations, because, as I think the noble Lord, Lord Leatherland, said on that occasion, they all dealt with taxation of one kind or another, and taxation, or the power to increase or impose taxation, is excluded by Schedule 2 from the scope of Clause 2(2). All I should like to say here is that we must not assume that because a Statute has in its title some reference to taxation it must do nothing but impose or increase taxation. Perhaps I can illustrate this by reference to, for instance, the Finance Act 1971, Section 3(6). That section gives the Commissioners of Customs and Excise power to make regulations for securing and collecting Excise duty on gas as fuel for road vehicles. That was a Finance Act, and one would assume that it was imposing or increasing taxa- tion; but in fact, in those particular regulations, the power given to a Department does nothing of the sort.

The noble Lord, Lord Shackleton, also asked what type of order Departments might be making in this respect. Perhaps I may refer here to information that I think has already been given in another place. In answer to a Written Question on May 18, my right honourable friend the Chancellor of the Duchy of Lancaster outlined the instruments under Clause 2(2) which are thought to be required in 1972. There were six in all, things like non-governmental training schemes. Then an estimate of the instruments which would be required on certain subjects under Clause 2(2) in 1973—ten subjects in all. Statistics of international movement of goods by road was one.

So far as we can see, my Lords, none of the United Kingdom Departments without a ministerial head needs to make any regulations to implement Community requirements as foreseen for 1972 or 1973 at the present time or immediately on accession. But, to take only one example, that of the Board of Customs and Excise, it is quite possible that in the course of time they may well wish to make regulations under Clause 2(2) governing such matters as, for instance, the procedure for verifying the origin of goods passing between the United Kingdom and the Channel Islands or on Community customs procedures. That is the type of departmental regulation which is foreseen here.

I am not marking myself at the present time, but I hope that I have given the noble Lord the clear explanation for which he has asked. I did remark what was said on our last Amendment about the imperviousness, as it seemed, of both sides of the House at the present time to argument from one side or the other. I should hope that on this particular one there may be a certain perviousness on the part of noble Lords opposite.


A certain what?


A certain perviousness, if I may coin a phrase. I hope that, in the light of the explanation I have given, noble Lords will not wish to press these particular Amendments


My Lords, the noble Earl has tried very hard, but I must say that I cannot think he has been conclusive in the arguments that he has put forward. It would seem to me that noble Lords opposite have a sort of identikit of speeches. They have a number of phrases on different pieces of paper and they shuffle them round and come up with a different speech to suit a particular occasion. The phrase which attracted my attention, which is an old favourite, was "in accordance with our normal domestic procedure". This is one that comes to the top in compiling a certain speech. The noble Viscount came up with the completely opposite argument on another piece of paper, with the phrase, "The normal processes do not apply and cannot apply". Noble Lords cannot have it both ways. We are not here dealing with the normal domestic procedures; we are moving into a different sphere, as the noble Viscount convinced me a few Amendments ago. It really is not applicable to say that we are applying our normal domestic procedures.

The sort of principle which I suggest we ought to follow is, in the first place, to start off on this exercise showing the utmost caution and making every conceivable protection when we first go in. Although we have these statistics, we have had no practical experience of the sort of regulations and orders that will be issued. We built up our Parliament in the past by making refinements as we went along. I should have thought that the best thing to do here is, in the first place, until we know what we are doing and we know the sort of importance of the things that are coming out, to lay it down clearly that the Minister must sign it. Later on, if experience so suggests, we can amend that and can make provision for the Departments to produce these orders: but at the beginning, until we know more about it, let us show caution. This, I should have thought, would be the reasonable way to go about business. It is the way that I should do things in business. If I were designing an aeroplane, I should take every possible precaution in the first place, taking no risks, and later on, when it was found that stresses could be applied to a piece of material, then modifications could be made. So it is with this Bill. Although the noble Earl had a jolly good shot at it, I feel that he would have been well advised to accept our Amendments.


My Lords, with the permission of the House, may I say one thing, and I should like to make it absolutely clear. Not only are Ministers responsible for their Departments—"Departments" used in the sense that they fall under their umbrella and come within their purview (and this is an old established convention deeply embedded in our Constitution)—but they need and require to be in charge, first, of the Order in Council designating the Department, which they will have to justify, if need be, to Parliament: and secondly, of the Statutory Instrument, the regulations made by the Department, which will come before both Houses of Parliament and be subject either to the Affirmative or the Negative Resolution procedure. I would suggest to the noble Lord, Lord Beswick, that the ministerial responsibility is quite clearly defined here, and what we are doing is in no wise an incautious, revolutionary departure of any sort. The safeguards are absolutely and firmly embedded, and there is the double safety catch of which I have already spoken.

On Question, Amendment negatived.

8.29 p.m.

LORD SHACKLETON moved Amendment No. 9:

Page 3, line 15, at end insert— (" (2A) Her Majesty's Government shall keep under review the coming into force and the operation from time to time of subsection (1) above and shall report thereon to Parliament as soon as possible and not later than three months of the date upon which by virtue of such operation any enforceable Community right, power, liability, obligation, restriction. remedy or procedure takes effect. (2B) Every such report as is referred to in subsection (2A) above shall—

  1. (a) state the relevant enforceable Community right, power. liability. obligation, restriction, remedy or procedure;
  2. (b) report upon all matters arising out of or related thereto.").

The noble Lord said: My Lords, I believe this Amendment to be an important one. Again it relates to the position of Parliament and its ability to exercise Parliamentary control, but, above all, to keep supervision and to be aware of what has happened in the Community so as to make sure that whatever is needed to be done is done. I must admit that, not for the first time, I am inspired to this Amendment by the eloquence of the noble and learned Lord the Lord Chancellor. He will observe that there is a certain similarity in the language to that of the Amendment which I moved regarding the Law Commission. Not for the first time the noble and learned Lord the Lord Chancellor convinced me that the need to keep under review—which I believe ultimately must remain in the hands of the Law Commission—was of a kind which, as he said, would bring the Law Commission to a grinding halt. I speak now of the need for a report which will state the relevant enforceable Community right, power, remedy, restriction, procedure—a report upon all matters arising out of or related thereto. This lays upon Her Majesty's Government an obligation that they shall report to Parliament not later than three months after the date on which any enforceable Community obligation takes effect.

I must apologise for some of the wording of the Amendment, which refers to Her Majesty's Government keeping under review the coming into force and the operation from time to time"— but this wording is stolen directly from the Bill itself. I think I might have produced something a little simpler; but the reason why I favour this Amendment is because, when we moved the one on the Law Commission. the noble and learned Lord the Lord Chancellor said that neither of these two functions can be performed by the Law Commission, not only because the work is too onerous to carry out with existing tasks, but also because the Commission are not the appropriate vehicle. It must be done by Parliament and by organisms and mechanisms directly under the control of Parliament.

What those mechanisms will be is a matter for discussion, but I would have hoped that the organism was the Government, and I would have hoped, even at this late hour, that the Government is under the control of Parliament. It seems to me that this Amendment, again, could make a valuable contribution towards keeping both Parliament and public informed. We have frequently heard about the multitude of channels by which we shall be told of what has been done by the Community. We are told that in the Journal Officiel we shall be told about this, and we are also told that all Treaties are deposited in the Clerk of the Parliaments' Office.

What we are asking for is a regular report. All treaties, if I remember rightly, do appear—in fact, looking at that little printed pink paper, we see that it always seems to be full of treaties. The noble Baroness must be a very busy girl, going round the world making treaties! But there are going to be a great many regulations, and this is an attempt to ensure that they are put together in a standardised form so that everybody knows that the Government will be publishing this information, will report and, if necessary, will provide some explanation—an explanation which may even be as long as those very sparse explanations that appear on Statutory Instruments, which, with great difficulty and after much argument, the Government of the day (which I believe was the Labour Government) finally brought itself to agree to so that one may understand what they are about.

I suggest that this is a useful Amendment and that it is the sort of Amendment which the Government ought to accept. Granting that the Government's hearts are in the right place, although there are times when they obstinately wander round the countryside avoiding the implications of the Amendments we move, I consider that wherever their hearts are their heads are nowhere connected to them. I do feel that this is a perfectly simple Amendment. Let me grant at once that it may be defective in some way, or that there may be some snag; but the principle behind it is clear—namely, that the Government should tell Parliament of all the new obligations imposed or developing, possibly to our advantage, so that people can take advantage of them, and that they shall be reported.

It can be argued that the details will be so voluminous that this procedure would take up too much time and be expensive; but if they are so voluminous then it seems to me all the more desirable that they should be brought together in a single form. It may even be that there is some arrangement whereby the noble Earl, with his responsibility for the Stationery Office, can make arrangements for off-prints to be made, since the Journal Officiel is being published in English, among other languages. It may be that in some form it can become a Parliamentary Paper. It is a Parliamentary Paper that I want, one that is laid by the Government and that reports to us all within reasonable time—we have suggested within three months, but this is post hoc and has nothing to do with the argument about previous scrutiny because we have dealt with that already. This is a post legislation proposal, and it seems to me to be one which is very desirable. I still hope, though hope grows faint, that this eminently reasonable Amendment, as it seems to me, is one which will be acceptable to all noble Lords, whether they are pro-Market or anti-Market. I hope that they will all support this Amendment, which I beg to move.

8.37 p.m.


My Lords, I hope the noble Lord will excuse me if I deal with this Amendment relatively shortly because, as I shall endeavour to show, or at any rate to imply, this really is part of the running battle which we have been having as to the appropriate way in which Parliamentary mechanisms of control can be operated to secure the results which we all want.

I have already spoken on an earlier Amendment (I think No. 4), after my noble friend the Leader of the House, in which I merely set out my general point of view, which is at variance with what has been said on behalf of the Opposition, and inescapably at variance. I think these Amendments are misguided because the method which I recommend is radically different from that recommended by the Opposition. All that I said on Amendment No. 4 could be applied, mutatis mutandis, to the present Amendment as a matter of principle. Therefore I will not repeat myself on the principle. I will only say that if we were to accept any of these Amendments—and more so if we accepted them all—there would be two mountains of paper, not one. One would be a mountain of paper which would be of some use because it would be used to assist in the scrutiny of Parliamentary control. Then there would be a second mountain of paper which would be of no use whatever because it was rendered ineffective by nature of the fact that it had been inserted only to satisfy the Opposition as the Bill passed through the House. This would be an end greatly to be deplored.

Having said that, my Lords, I would apply it only to the special case of this Amendment. Amendment No. 4 dealt with directives, broadly speaking, which required action by Her Majesty's Government. The next Amendment which we are to discuss would require an annual report. This one requires a report every three months on directly applicable provisions, and from now on I shall deal with this Amendment, although the general remarks I made under Amendment No. 4 have, I think, an application to this case, too.

The first thing I want to say is that the mountain of paper is not inconsiderable. Owing to the time-lag in publication, if the Government were to comply with this Amendment, it would have to report six times a year. We would have to report every two months, and it takes a month to publish. There would be six reports during the course of a year to comply with the Amendment. If we were going to do this we should have to be satisfied that some useful purpose was going to be served by the Amendment. It would serve no useful purpose so far as regards the publication of the Instruments themselves, because they would already have been published in the form in which they would be available to the public in this country in the English version of the Official Journal. I hope they would be available free of charge to Members of this House and the other place.

Secondly, they might, I am sorry to say, be misleading. It is for the Government of the day to identify the particular action which they recommend and then to put it before Parliament. This Amendment relates to directly applicable provisions and, as I said more than once on the Committee stage, it is not for the Government to identify those provisions which are directly applicable; it is for the courts of this country, in the first place, and, on reference, ultimately the Luxembourg Court. The result is that any one of the six reports annually that we had to deliver on this subject might well be misleading. They would have another disadvantage. The text of a legal document is what counts in the long run, and in order to comply with this document we should have to paraphrase the text. My experience is that all paraphrases are either commentaries or misleading. The actual text is what works and the commentaries may be valuable in explaining the text, but if you start paraphrasing you get into profound trouble.

My belief is that if we were to comply with the Amendment we might find ourselves misleading those who would be affected by the direct provisions by paraphrasing what had already been published in an authentic text in English. What we are going to do—and this is another reason for thinking that what we propose is more appropriate to the requirements of the case—is to see that the experts, who will be professionally concerned with the new legislation, will depend not only on their own examination on law, but on the guidance and advice issued by Government Departments. Work is already in hand in Whitehall in drafting memoranda which explain, so far as one can explain by way of commentary, the impact of Community law already in force, and this will he a continuing process after accession. This will involve a process marginally different from that required under the Amendment. Again, I foresee the difficulty of two mountains of paper instead of one. One would be of real value, because it was devised to serve a genuine need, and the other would be simply a smokescreen designed to appease the Opposition in the passage of the Bill.


My Lords, who are the experts the noble and learned Lord referred to? Have they been appointed, and are they mentioned in any way in the Bill?


My Lords, they are not mentioned in the Bill. What I was considering was that when somebody affected by Community law, as indeed when somebody is affected by domestic law, he normally employs an expert to advise him. It is usually a professional lawyer, but in some cases it is an accountant or some other professional gentleman, who gives advice as to the impact of law upon his par- ticular case. This is invariably the case where one is involved in tax questions. It would be the case in questions of domestic law and Community law. What I meant was the advisers of persons who would be affected in one way or the other by the directly applicable law. It follows from that that those persons are not mentioned in the Bill.

It is the fact—the noble Lord, Lord Shackleton, referred to it on the Committee stage in connection with another and not wholly different Amendment—that reference was made to the work of the Law Commission. I did at the request of the noble Lord, but I should have done so at the request of other noble Lords, too, communicate with the Law Commission after that debate. I am happy to say that I received a letter from the Chairman explaining two things. First, he agreed with what had fallen from the noble and learned Lord, Lord Gardiner, and myself during the course of the previous debate. Secondly, he said that he had been in communication, and was continuing to be in communication, with the Scottish Law Commission Chairman as to the role they would both play in dealing with the problem of directly applicable Community law.

They both see eye to eye with the Government on this. They both recognise that it is the function of the two Law Commissions to consider the impact of Community law generally and, in particular, of directly applicable Community law, in creating anomalies in domestic law and to review these anomalies with a view to removing them as part of their general remit. This was what both the noble and learned Lord, Lord Gardiner, and I said on a previous occasion. I am happy to tell the House that I have confirmed that it is going on and that they will be able to give the necessary requisite attention.


My Lords, I gather that the noble and learned Lord is now accepting, in principle, the earlier Amendment which he persuaded me was not a runner.


Not at all, my Lords; quite the reverse. I am accepting what I said before and telling the noble Lord how right I was, but as politely as I might.


My Lords, the trouble is that the noble and learned Lord apparently did not know how right he was. It is only since he has communicated that he has had the information that the Law Commission are now prepared, as we thought, to suit their own timetable to do what that Amendment asked them to do, which the noble and learned Lord opposed at the time.


My Lords, when I was dealing with the point before I was answering the noble Lord, and I gave him a perfectly correct answer—I do not want to preen myself unduly on this. I was not accepting his Amendment then, and I am not accepting it now. Both the noble and learn Lord, Lord Gardiner, and I, in a previous debate, pointed to the general functions of the Law Commission, and correctly advised the Committee that anomalies resulting in domestic law as a result of the impact of Community law would come within their general remit under the appropriate Act.

My Lords, if I may conclude, when speaking on Amendment No. 4 I pointed out how important it is that when we are achieving Parliamentary scrutiny we must learn to whittle out the important from the unimportant in order not to give ourselves a lot of wasted work. That has a direct application to this Amendment, as it did to some of the arguments in the earlier Amendment, No. 4. I have looked up the kind of thing with which these six consecutive reports every year would have to deal. There were three sets of regulations published by the Stationery Office on August 25. The first related to the pay of the staff of the Joint Nuclear Research Centre. The second related to aid for silkworm breeding. The third—which was a group of 12—contained detailed rules for the application of the Common Agricultural Policy to different commodities.

I really do think, my Lords, that when we come to discuss—and I hope that sooner or later we shall at last begin to discuss with the Opposition—how to impose Parliamentary control, we shall ask ourselves whether we really can bring within the same system of scrutiny trivial things such as silkworm breeding, which does not affect any very large interest in this country, and matters of major im- portance, such as the Community's rules of competition which arise, for instance, under Regulation 17. I think that a system of statutory control of the kind which is now proposed would utterly fail to do so. So, at the end of the case, fundamentally this is part of the same running battle as was fought out on Amendment 4, and no doubt will be discussed again on the next Amendment, No. 10, when we reach it. But the arguments which apply to the other two cases apply equally here and with some special added emphasis. In the end, if we accept the advice of the Opposition we shall be creating, as I say, two mounds of paper, a useful mound and a useless mound, and I can see no value in such a process. I would therefore advise the House not to accept this Amendment, on the same grounds as those on which I opposed No. 4.

8.52 p.m.


My Lords, I agree with the noble and learned Lord that this is part of a running battle. We have had this argument before. We want to see certain things in the Bill. Ministers speaking for the Government say, "Oh, trust us. Everything will be done properly once we are inside." This is the gravamen of their arguments: "Let's have an ad hoc committee. Let's have some other form of consideration afterwards. Let's get inside first."The truth of the matter is that we do not trust the Government. We do not believe that they will necessarily take all the precautions they say they will take to ensure that Parliament is adequately informed on these matters. There is absolutely no evidence to suggest that in this matter they are going to ensure that Parliament plays an adequate part in the proceedings of the Commission and the Council of Ministers and so on.

The noble and learned Lord had this argument about the amount of paper that will be required. First of all, I must ask him, as he has seriously alarmed many of my noble friends: if we have a report every three months, how does that add up to six reports a year?


My Lords, I pointed that out. The noble Lord, I think, would not wish to take me wrong. I said that it would be necessary to report every two months in order to comply with the requirement "within three months", because one month is of course taken up in printing. The Amendment requires it to be done within three months of the matter becoming effective. Therefore, there would be six reports a year, two months each.


My Lords, I think that if the noble and learned Lord reads in Hansard to-morrow what he said he will probably wish to come forward with a different story. If the thing has to be done a month in advance, it is a month in advance of every three-monthly period.

What I was thinking as the noble and learned Lord was making his very powerful speech was what a brilliant case, what a powerful case, what an alarming, absolutely devastating case he could have made against the OFFICIAL REPORT of our proceedings here in Parliament; what a wasteful mound of paper we have—a daily Hansard, a Weekly Hansard, a Bound Volume of Hansard; all the Green Papers and White Papers. If the noble and learned Lord had his way we should be working here without any knowledge at all of what is being said and done. Maybe we should be better off. But the fact of the matter is that Parliament has worked reasonably well in this country. There are many criticisms that can be made against it. But if one looks abroad, if one looks at what has happened in the countries we are liable to join, one would say, I think, that our Parliament has been as successful as any and probably more successful than most. One reason is that we have contrived to keep people informed, although we do not inform them sufficiently well.

I make in passing (I hope we shall be rising early) the point—it is quite irrelevant but it occurs to me—that one newspaper which has had more effect in getting us into the Common Market is the newspaper which has purported to be so violently against; namely, the Daily Express. In this connection, the Daily Express as a matter of policy has forbidden the publication of anything to

do with Parliament. Although it purports to be violently against the Economic Community, because its readers are unaware, or largely unaware, of what is done and said in this House they are the least strenuous in their defence of Parliament. Because papers such as the Daily Express have not given full reports of what we do, it has been all the more important that we should have official reporting.

Many important matters are going to be decided in Brussels, by the Commission, by the Council of Ministers, and so on; and it is important that we should know what is said and done. The noble and learned Lord poured scorn on the silkworm breeders. He was devastating in the contempt he showed for silkworm breeders. But if regulations are made affecting their livelihood it is going to be important to them.


My Lords, I said they are of a different order of importance to the general public from the rules of competition under Reguation 17. I have the profoundest respect for the British silkworm breeders, male and female, and for British silkworms, which I have no doubt are the best silkworms in the world.


My Lords, the noble and learned Lord is now falling back upon Chauvinism. The truth is that all these apparently unimportant matters are important to someone. It is necessary therefore to see that we get the fullest possible publication of what is said in Brussels. Again we come, as the noble and learned Lord has said, to a question of principle. We want to see some of these things written into the Bill. The Government say, "No. Trust us. We will see that everything is all right on the day."My Lords, I cannot put that amount of trust either in the noble and learned Lord or in his Government, and I suggest we vote on this Amendment.

8.57 p.m.

On Question, Whether the said Amendment (No. 9) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 111.

Addison, V. Blyton, L. Greenwood of Rossendale, L.
Bernstein, L Champion, L. Hoy, L.
Beswick, L. de Clifford, L. Hughes, L.
Lauderdale, E. Shackleton, L. Strabolgi, L. [Teller.]
Llewelyn-Davies of Hastoe, Bs. Shepherd, L. Watkins, L.
Milner of Leeds, L. [Teller.] Somers, L. Wynne-Jones, L.
Phillips, Bs. Stow Hill, L.
Aberdare, L. Ferrers, E. Polwarth, L.
Ailwyn, L. Fortescue, E. Radnor, E.
Albemarle, E. Fraser of Lonsdale, L. Rankeillour, L.
Aldenham, L. Gainford, L. Reay, L.
Amherst of Hackney, L. Gisborough, L. Redmayne, L.
Amory, V. Goschen, V. Reigate, L.
Arbuthnott, V. Gowrie, E. Remnant, L.
Astor of Hever, L. Grimston of Westbury, L. Roberthall, L.
Auckland, L. Hailes, L. Rochdale, V.
Balerno, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Runciman of Doxford, V.
Balfour, E. St. Just, L.
Barnby, L. Hastings, L. Saint Oswald, L.
Bathurst, E. Hatherton, L. Sandford, L.
Beauchamp, E. Hawke, L. Sandys, L.
Beaumont, L. Hemingford, L. Savile, L.
Beaumont of Whitley, L. Hewlett, L. Seear, Bs.
Belstead, L. Hives, L. Sempill, Ly.
Berkeley, Bs. Hood, V. Somerleyton, L.
Blake, L. Hylton, L. Stonehaven, V.
Brentford, V. Ironside, L. Strathclyde, L.
Brooke of Cumnor, L. Jellicoe, E. (L. Privy Seal.) Suffield, L.
Colville of Culross, V. Kemsley, V. Swansea, L.
Cork and Orrery, E. Killearn, L. Tanlaw, L.
Cottesloe, L. Kinnoull, E. Townshend, M.
Craigmyle, L. Lansdowne, M. Trefgarne, L.
Craigton, L. Latymer, L. Tweedsmuir, L.
Croft, L. Limerick, E. Tweedsmuir of Belhelvie, Bs.
Davidson, V. Macleod of Borve, Bs. Vivian, L.
Denham, L. [Teller.] Massereene and Ferrard, V. Waldegrave, E.
Derwent, L. May, L. Ward of Witley, V.
Digby, L. Milverton, L. Westminster, D.
Drumalbyn, L. Molson, L. Windlesham, L.
Dundonald, E. Monk Bretton, L. Wolverton, L.
Ebbisham, L. Mowbray and Stourton, L. [Teller.] Wynford, L.
Elles, Bs. Yarborough, E.
Elliot of Harwood, Bs. Newall, L. Young, Bs.
Emmet of Amberley, Bs. Northchurch, Bs. Zuckerman, L.
Falmouth, V. Nugent of Guildford, L.

Resolved in the negative, and Amendment disagreed to accordingly.


My Lords, in view of the fact that we are now halfway through the list of Amendments and also that we have reached the witching hour of nine o'clock I think it might be agreeable to the House as a whole if we were now to adjourn.