§ 4.11 p.m.
§ Lord DIPLOCK rose to move, That this House take note of the Tenth, Thirteenth and Fifteenth Reports of the European Communities Committee on the direct applicability of Directives, on the amendment of United Kingdom Statutes by EEC Regulations and Legislation in the United Kingdom consequential on EEC proposals, and on the direct applicability of Articles 48, 52 and 59 of the Treaty of Rome. The noble and learned Lord said: My Lords, I beg to move that this House take note of three Reports of the European Communities Committee. Those Reports have a common subject matter: that is, the Community laws which are directly applicable in the United Kingdom.
§ Your Lordships will no doubt recall that there are two kinds of Community law. The first kind are those that are directly applicable, in the sense that they 322 are capable of giving rise to rights and obligations directly enforceable in this country; and they are directly applicable because Parliament so enacted in Section 2(1) of the European Communities Act 1972 that they should have the force of law in the United Kingdom. They comprise some provisions of the Treaty itself but mainly Regulations made under the Treaty. The other class relates to those not directly applicable. They consist mainly of Directives which state the object to be achieved but have no direct effect until we make the necessary alterations in the United Kingdom law.
§ I am afraid that the problems raised by these Reports are dry and technical problems, but they are important in order to ensure the smooth working of the machinery of the Common Market. They do not involve any great question of principle, and in view of the strong feelings which are likely to be held at this particular time before the referendum, it is appropriate that I should put them into perspective by explaining what this debate is not about. It is not about that emotive issue of sovereignty. There are a few provisions of the Treaty which are directly applicable—in effect those that state some basic principles—and, as I say, Section 2(1) of the European Communities Act made them part of United Kingdom law. There is nothing novel in that. It is common to all commercial conventions into which this country enters. The effect is that those provisions cannot be amended except by a somewhat elaborate procedure of amendment of the Treaty itself. That is what happens when we pass an Act of Parliament which gives effect to an International Convention. One of the most conspicuous examples was the Carriage of Goods by Sea Act of 1924, which gave effect to the international Convention known as The Hague Rules.
§ The same applies to the Regulations and Directives made by the Council of the Communities before our accession to the Treaty—a Council on which the United Kingdom, naturally, was not represented. It applies, however, with an important difference. Again, Parliament had the opportunity of debating these in 1972. They involved some amendments in the existing laws or some new laws, and these were made in Part II of the European Communities Act 1972. The important difference between them and provisions of 323 the Treaty is that these can be amended with comparative ease, and the flexibility of the amendment procedure is dramatically illustrated by the fact that all those changes which have come, or are about to come, about as a result of the renegotiation were made under that amending power and require no amendment of the Treaty itself.
§ In addition, there are those Regulations and Directives made after we acceded to the Treaty and those which are to be made in future, at a time when we are represented by a Minister on the Council. These present the only constitutional novelty in the Treaty of Rome, but they do not involve any abandonment of national or Parliamentary sovereignty: they affect only the method by which effect is given to that sovereignty.
§ First, as to national sovereignty, it is important to realise that institutionally the Treaty itself provides a skeleton structure. The conventions which have grown up as to its practical working give to it flesh and blood, flesh and blood which is capable of growing and which is flexible and adaptable to changing conditions. The Treaty itself provides for various classes of Regulations and Directives. All the important ones are made by the Council, and I shall restrict myself to them. The most important and far-reaching of them under the Treaty require the unanimous agreement of all the Member-States represented on the Council, the less important require a qualified majority and the least important a simple majority.
§ That is the skeleton provided by the Treaty. But in practice there is a convention under the Luxembourg Accord which provides to the United Kingdom, as it provides to every Member-State an understanding that it may exercise a right of veto on any proposed Community legislation where it considers that this would affect adversely its vital interest. The Luxembourg Accord is a constitutional convention. It is not contrary to the Treaty, for the Council is justified in considering that an action contrary to the vital interest of any Member-State is not in the interests of the Community itself; so far as possible accession regulations are concerned, none will be made in practice for the United Kingdom Government which the United Kingdom 324 Government regard as contrary to the vital interest of this country. So much for national sovereignty.
§ Parliamentary sovereignty relates to the control which Parliament can exercise, over the way Government exercise national sovereignty in the Council of Ministers. That depends on our devising for ourselves adequate machinery for consideration and discussion by both Houses of Parliament of Community laws before they are made. This is important because, while there is a veto upon making Community laws, amendment of them does require support of other Member-States. This problem is a domestic problem. The solution lies not in Brussels, but here in Westminster. It is up to us to devise and operate effective machinery for doing that. On the European Communities Committee, we are feeling our way to improvements in that machinery; and this debate and the earlier debates which we have had of a similar nature on Reports of the Committee are examples of the way in which this House can consider and express to Government its views about Community legislation, and can express them before it is made. So this debate is not about great principles of national or Parliamentary sovereignty.
§ The other point I should like to make clear is that it does not involve any criticism of those judgments of the European Court of Justice which are dealt with in the Tenth and Fifteenth Reports. Any such criticism would, in any event, come ill from me; dog does not eat dog. But the rule of law requires the uniform application of written laws throughout the territory in which they are enforced. Because of the imperfections of language, it is inevitable that there will be, from time to time, some ambiguities in the way the law is expressed. The rule of law requires that there should be some judicial authority with ultimate power to resolve disputes as to the meaning of written laws and to say authoritatively what they mean.
§ United Kingdom laws are the function of the Judicial Committee of this House, but Community laws apply not only in this country but throughout the Member-States. It would obviously be as un-acceptable to members of other Member-States that United Kingdom courts should be the final interpreters of Community 325 legislation as it would be unacceptable to us that the Courts of France, of very distinguished membership, should be the final arbiters. The Treaty confides this task to the European Court of Justice upon which the judiciary of all the Member-States is represented; and Parliament has accepted this by enacting in Section 3 of the European Communities Act that their interpretation of the Treaty shall be decisive. I may add that there is nothing very novel in this, either. The English courts would, under their present practice, follow the ruling of the International Court as to the meaning of a treaty which we have adopted into our English law, because they would take the view—and this is the authorities—that they will not give to it a meaning which would involve this country in breach of international obligation.
§ It is in the nature of things, because of the possibility of ambiguity in any written law, that Community institutions and Governments of Member-States may act on the assumption that the Community law means something different from what it is later held to mean by the European court. That is what gives rise to the technical problems referred to in the Tenth and Fifteenth Reports, which are the basic subject of the debate this afternoon. Again there is nothing novel in this. It happens frequently in the case of complex United Kingdom law that, maybe some years after it is passed, the Judicial Committee of this House says that it means something quite different from what everyone had assumed it meant before. This is one of the consequences of the rule of law, it is one of the disadvantages; but there are advantages which far outweigh them. In the interests of certainty, so that citizens, public authorities and Governments may know where they stand, it is important that a written law should not remain unrepealed upon the Statute Book when, in fact, it has been repealed.
§ An apparently valid domestic law may be in conflict with a directly applicable Community law. If it is certain at the time that the Community law is made whether or not it is directly applicable, there is no problem involved. If it is directly applicable, it has the same effect as an Act of Parliament. It may, and very much more often than not does, 326 effect no change in our existing law. Then all its effect here is that it is declaratory of the law as it has been before, and the effect of such a directly applicable law is to bring the laws of other States into line with the Common Law or the Statutory Law of the United Kingdom. But it may conflict with a previous Act of Parliament or subordinate legislation.
§ If nothing were done, it would effect repeal of any inconsistent Act or subordinate legislation by implication and effect that repeal to the extent of the inconsistency; but in the interest of certainty we in the United Kingdom do not leave laws upon the Statute Book to be repealed by implication. We repeal them expressly, or we amend them to avoid the inconsistency. That is why the terms of reference of the Law Sub-Committee of the Select Committee require that Committee to consider what Amendments, if any, will be needed to our existing law as a result of the new, directly applicable Community law, and the only problem is to ensure that all the necessary repeals and Amendments are made. This is no different from the problem that confronts the Parliamentary draftsman whenever a new Act of Parliament is passed. I can pay this tribute to the efficiency with which Parliamentary draftsmen can, and do, discharge that task when I say that in the whole of my judicial experience, which now extends to nearly twenty years, I cannot remember a single case in which he has slipped up in that respect.
§ Let me again put this problem, the problem of the legislation which is known to be directly applicable, in focus. You will see in the Thirteenth Report that, since it was reconstituted in November 1974—since I have presided over it—95 proposals for Regulations have been considered by the Law Sub-Committee; 77 of them involved no alteration at all in our existing law; 18 required changes in subordinate legislation only, and none required any alteration to an Act of Parliament or an Amendment to an Act of Parliament. The Brussels steamroller is rolling only a very small proportion of our law.
§ What is the problem with Community law that is known to be not directly applicable? There it is up to us to pass any domestic legislation which may be needed to achieve the required result. 327 Naturally, this is more likely to require domestic legislation than are Regulations. But again you will find if you study the Thirteenth Report that, of 50 Directives, only four required some amendment to our Statutory Law and 28 of them required only Statutory Instruments.
§ What is the difficulty that may arise here? The only difficulty is if the draftsman misinterprets the object to be achieved. If he does, the only result is that the United Kingdom as a Member-State would be inadvertently in breach of its obligations under the Treaty and could be brought before the European Court, as there is some suggestion that the French Government will be brought before the European Court in the case of the recent dispute with Italy about surplus wine. The risk of misinterpretation is limited by the requirement which most Directives now contain, that the Member-State should inform the Commission of what legislation it proposes to use to achieve the desired object. If, therefore, there is any difference between the Government draftsman here and the legal members of the Commission, that difference, and the risk of any misinterpretation, can be solved and, one would have thought, eliminated at that stage.
§ So long as it is certain that a particular piece of Community law is directly applicable, or is not directly applicable, so long as it is certain into which category it falls, there are no technical difficulties about our dealing with the problem which we have to deal with here at Westminster. The technical difficulties arise only when it is uncertain whether or not the Community law is directly applicable—that is, whether domestic legislation is necessary in order to give effect to it. That involves the risk that there may be two laws on the same subject which are in conflict, only one of which is sought by everybody to be the effective law.
§ This may happen in two sets of circumstances. The first is where Community institutions themselves, or Member-States, act on the assumption that a provision of the Treaty itself is not applicable and the European Court later rules that it is. That is a diminishing problem, because in the course of 17 years rulings have been obtained from 328 the European Court on all, or nearly all, of those provisions of the Treaty which, on any view, could possibly be directly applicable. However, it happened in the case of three Articles dealing with freedom of movement, persons and services, which are dealt with in the Fifteenth Report, and it also happened when a provision, not in a Regulation but in a Directive, was held to be directly applicable. It was in the case that came from this country, the Van Duyn case, and that is the subject of the Tenth Report.
§ The practical problems which arise from an uncertainty as to whether or not a Community law is directly applicable are much more troublesome in the case of Directives than in the case of a provision of the Treaty, quite apart from the diminishing likelihood that there can be other provisions of the Treaty which the European Court has not already ruled on and might later rule to be directly applicable. Where it does happen, as it happened in the case of those three Articles dealt with in the Fifteenth Report, it may have repealed domestic legislation in a Member-State which the Member-State assumed would remain in force until a Directive or a Regulation had been issued. In the particular case referred to in the Fifteenth Report, the Court's ruling invalidated restrictions upon self-employed activities and services which were based exclusively upon nationality or residence.
§ Such restrictions are not uncommon in some of the other Member-States, but they are rare indeed in the United Kingdom, so that the practical effect of this ruling in this country is likely to be minimal. The Law Sub-Committee has been unable to discover any such restriction which would have been invalidated by this ruling of the Court, but I would suggest that it is worth while for Government Departments to double-check this. We do not have in the Committee all the resources at our command to be absolutely certain that we are right in saying that this will have no effect at all upon United Kingdom legislation.
§ But in the case of Directives, it is much more troublesome if one finds out afterwards that what was thought not to be directly applicable, is in fact directly applicable. Prima facie what Directives require Member-States to do is to pass any domestic legislation which is neces 329 sary to give effect to all the provisions of the Directives. If that is done and we pass legislation, as we believe to be our duty under the Treaty, to secure a particular result, then all citizens are entitled to act, or feel at any rate that they should be entitled to act, on the assumption that the domestic law which appears to govern them, does in fact govern their activities and they ought to be safe in acting on that assumption. That is the requirement of certainty which is basic to the rule of law.
§ But if the Government act on the assumption that this Directive requires us to pass domestic legislation, it is possible that a long time afterwards—and in the Van Duyn case it was 10 years after the Directive had been made—the European Court may rule that the provision was directly applicable. The result might well have been that during those 10 years there had apparently been in force valid domestic legislation in this country, passed to achieve the object of the Directive, on which people had acted, changed their position, incurred liabilities and the like only to find, 10 years thereafter, that what was really the law in force in this country was a directly applicable provision of the Directive which it might be—and this is the risk one must avoid—was in some respects in conflict with the legislation that had been passed. That is a risk. I do not want to exaggerate its incidence; probably it could happen very seldom indeed. But it is a risk that we ought to take all possible steps to avoid, if we are to get this institution working smoothly so far as Community laws are concerned.
§ I venture to suggest for the consideration of Government that that risk can be avoided and, I think, eliminated. Whether or not a provision of a Directive is directly applicable depends on the intention of the Council when it made the Directive, as gathered by the words that it used. In the Van Duyn case, the European Court decided that the intention of the Council, as gathered from the words it used, must have been that that provision of the Directive should be directly applicable. So the solution is this. One must make certain ab initio, at the moment the Directive is made, whether any provision of it is intended by the Council—because it is their inten 330 tion that matters—to be directly applicable, and the Council should adopt the practice, when making Directives in the future, of stating expressly whether any of their provisions are intended to be directly applicable, and if so which those provisions are.
§ There is a precedent for putting that kind of statement in Community legislation. Many of them contain an express statement—although this has up to now been confined to Regulations—that something is to be directly applicable. If a similar practice were extended to Directives, then those difficulties to which attention is drawn in the Tenth Report of the Committee could be eliminated. The probable result of that, in practice, would be that the Council would declare, as a matter of routine, that no provisions of a Directive were intended to be directly applicable, and would confine directly applicable provisions to Regulations as it had been understood they were confined.
§ I say that would be the practical result of this proposal for two reasons. One is the technical reason that a provision is capable of being directly applicable only if it satisfies certain criteria which have, till now, been laid down only on very broad lines by the European Court. At present it is not easy to determine in advance whether the European Court will ultimately say that this is a provision which is capable of being directly applicable. If the Council have said that it was intended to be directly applicable when it is not capable of having that effect, then it will not have the effect of direct applicability. So the Council avoid the risk of similar difficulties to those in which we find ourselves as a result of the ruling by sticking to Regulations for what they wish to be directly applicable, and to Directives for what they wish should not be so. That would restore the position to what it was before the decision in the Van Duyn case. It would leave clear cut the dividing line between laws that are directly applicable and those that are not.
§ My Lords, one sees a Regulation and one knows it is directly applicable; one sees a Directive and knows that it is not, and that it is up to this country to make its own domestic legislation to secure the result achieved. If that were done, then no difficulties would arise as a result of 331 the decision of the European Court, which was the result of its interpretation of the Treaty that a provision in a Directive is capable of being directly applicable. It will still remain capable of being directly applicable, but at any rate one will be sure whether it is or not. If the policy which I have suggested is adopted, the practical result I think will be to restore the position to what it was before. Regulations directly applicable, yes; Directives directly applicable, no—then we know where we are. There are no technical difficulties in giving effect in this country to laws passed by the Community, by the Council of Ministers on which we are represented, and on which under the Convention we have the right of veto if we feel that our vital national interests are affected. My Lords, I beg to move.
§ Moved, That this House takes note of the Tenth, Thirteenth and Fifteenth Reports of the European Communities Committee on the direct applicability of Directives, on the amendment of United Kingdom Statutes by EEC Regulations and legislation in the United Kingdom consequential on EEC proposals, and on the direct applicability of Articles 48, 52 and 59 of the Treaty of Rome — (Lord Diplock.)
§ 4.55 p.m.
§ The LORD CHANCELLOR
My Lords, at the outset, I should like to thank the noble and learned Lord, Lord Diplock, for his authoritative and lucid exposition of the matters raised in the three most valuable Reports that had been received from the Select Committee, and to congratulate the Select Committee on the quality of these Reports in a highly technical and difficult field. The Reports contain a careful and incisive analysis of important and legal developments in the Communities. It is of the greatest help to have placed before us their clear statements of the present position in Community law, and of the consequences for the internal law of the United Kingdom. I should like, as the noble and learned Lord has done, to make some comments on the Tenth Report, which seems to be the most important of the three documents.
My Lords, until recent years, the possibility of the direct application of the provisions in international treaties entered 332 into by the United Kingdom, that is, the possibility of such provision operating directly as law in this country as legal texts which a person could invoke before the courts of this country to assert his rights and obligations, was exceptional. It has not been unknown for our legislation, however, to give the force of law in the United Kingdom to the provisions of particular international treaties—the Uniform Laws on International Sales Act 1967, is perhaps an example—but it has not been common.
It is undoubtedly the case that with our membership of the European Communities, direct applicability has assumed a new and different dimension. The direct application of some Instruments issued by the European Communities, the Regulations, as the noble and learned Lord pointed out, is a fundamental feature of the legal relationships created by the Community Treaties. The EEC Treaty expressly says so in Article 189. So the principle of direct application of Regulations has been known, too, and accepted by the House for some time past. We have also known that ever since 1963 the provisions of the Treaties themselves could be of direct application because the European Court has ruled to that effect.
The doctrine of the direct application of provisions in Directives, however, is more unexpected though, as the Tenth Report indicates, not a complete novelty. It was on the cards that something of the kind would be developed in the case law of the European Court since the series of cases in 1970–71 to which the Report refers. But the recent decision in the case of Van Duyn and the Home Office has taken the matter further. It is right, as the noble and learned Lord has just done, that we as a House should examine its implications with considerable care, and it is with some trepidation that I myself will proceed so to do.
My Lords, the House will remember that this case, the first case referred to the European Court by a British court, concerned a claim by a Dutch national, a scientologist, that she was entitled as of right under the EEC Treaty to enter this country to take up employment in the headquarters of the scientologists at East Grinstead, in Sussex. She was denied entry in accordance with the declared policy of Her Majesty's Government not 333 to allow foreigners to enter this country to join scientological establishments which, as a matter of policy, we regard as harmful. The judgment of the European Court confirmed, as the Government had urged, that Member-States do retain a considerable measure of discretion in deciding on what grounds of public interest they may deny entry into their countries of nationals of other EEC countries. So, on the main issue which arose in the case, our right to deny entry to the claimant in the action, we were entirely successful.
But there was a preliminary question, as the noble and learned Lord has pointed out, whether the claimant could invoke some of the relevant Community provisions at all seeing that they were contained in Directives; could the relevant Directive contain directly applicable provisions. Previously such application had been attributed to a provision in a Directive only in very special circumstances; namely, where the Directive prescribed the date of coming into operation of another instrument which was of itself of direct application, rather like the commencement order in a United Kingdom Statute, and there are obviously special reasons for treating such a Directive in that way.
The court in the Van Duyn case has gone further and has reasoned that, since the Treaty makes Directives binding as to the result to be achieved upon Member-States, it would be wrong in principle to exclude the possibility that some obligation which they imposed may be invoked directly by individuals. But it is still very much open to argument how much wider the door has been opened. I venture to suggest that the extension is not as great as may appear at first sight and that its practical consequences for this country should not be overrated. A significant passage in the judgment reads:It is necessary to examine in every case whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member-States and individuals.So the first limitation, as I see it, is this: as the direct application of provisions in Directives flows from the fact that the obligations imposed by them are binding on the Member-States, a directly applicable provision can be invoked only against a State. I do not think that it 334 could be invoked by one private person against another. Secondly, the tests applied by the court in the only relevant case so far, the Van Duyn case, were so narrow that they would very rarely be satisfied. The court attributed direct effects to the relevant provisions in the Van Duyn circumstances because, first, the relevant provisions imposed a precise, definite and unconditional obligation on the Member-States, and, secondly, these provisions limited for the benefit of individuals the operation of the Treaty provision which derogates from one of the fundamental freedoms conferred by the Treaty. Very exceptional cases, which I mentioned earlier, apart, there is as yet no other authority attributing direct effect to provisions in Directives.
It may, however, well be that direct effect could in time be attributed more Widely. It is, as the court has said, necessary to examine the nature, general scheme and wording of each provision, and further tests will emerge only in the future decisions of the court. However, there is the possibility of difficulties arising of the kind indicated in the Report itself. But I believe and accept the view which is taken by the Select Committee when they say at the beginning of paragraph 14:It is not suggested that it is likely that there would be many actual cases of conflict between domestic law and a directly applicable provision of a Directive.However, as the noble and learned Lord has pointed out, the risk is there, and it is imperative that, so far as possible, it should be eliminated. I can assure the House that the Government will wish to take all appropriate steps to minimise the risk that the problems to which the noble and learned Lord has drawn attention, and to which the Report refers, will ever arise. When a decision has been taken on our continuing membership of the Communities, we shall, if it is affirmative, certainly explore with the authorities in Brussels and with our Treaty partners the possible solution to the problem which is put forward at the end of the Report, and which the noble and learned Lord has described.
The relevant paragraph is paragraph 14, and perhaps the House will permit me to read it:It is not suggested that it is likely that there would be many actual cases of conflict 335 between domestic law and a directly applicable provision of a Directive, but the risk is sufficiently real to make it desirable to take steps to eliminate it. The risk arises from the existence of a doubt as to whether a particular provision of a Directive is directly applicable, or not. To remove the doubt would be to remove the risk. It is suggested that in order to remove the doubt caused by the ruling of the European Court the Commission and the Council might adopt the practice of stating expressly in a Directive which, if any, of its provisions were intended to be directly applicable.I assure the House that we shall pursue the possibilities of forwarding that solution with the relevant authorities in Brussels and with our Treaty partners. Whether or not we shall succeed remains to be seen.
I should like to add a few words on the Thirteenth and Fifteenth Reports. Noble Lords will welcome the clear exposition in the Fifteenth Report of the recent decisions of the European Court in the Reyners case and the Van Binsbergen case, to which the noble and learned Lord referred, and I am sure it will help the House in appreciating the extent of the rights which are now enjoyed by all persons in the Member-States in regard to the exercise of their professions or the pursuit of their work in other Member-States. I should perhaps express some reservations about the tentative conclusion suggested in paragraphs 8(6) and (12) of the Report, which, I suggest, may go a little further than the cases justify. But these are matters which will require further examination when other Directives come before the Council of Ministers. Meanwhile, I can assure the House that the examination of the existing law and administrative practices, to make sure that gainful work or professional activities of EEC nationals in the United Kingdom are not improperly restricted, to which reference is made at the end of the Report, is already being undertaken.
I do not propose to comment extensively on what is said in the Thirteenth Report about amendments to Statutes by EEC Regulations. It seems to me, with respect, to summarise the position admirably. I should, however, like to add a special word of appreciation on the statistics on European Proposals which appear in Part IV of the Report to which the noble and learned Lord has referred. They seem to me to provide evidence of 336 a most valuable kind to dispel fears, which I confess many of us felt and which are still being expressed in certain quarters, about Community legislation inundating the country in a flood or overwhelming the law to which we are accustomed. In the statistics, there is evidence of a practical kind, covering probably the greater part of the two and a half years of our membership of the European Communities, which indicates that the total impact on our Statute Book has been very small. As the noble and learned Lord pointed out, only a handful of occasions for amendments of Statutes have arisen so far, and it is indeed a reassuring picture. What is more, the list of subject matters on which there have been Community proposals is no less illuminating.
In the 1967 White Paper on the legal and constitutional implications of United Kingdom membership of the European Community, the previous Labour Administration said this:By far the greater part of our domestic law would remain unchanged. Nothing in the Community law would, for example, materially affect the general principles of our criminal law or those of the laws of contract or tort, or its Scottish equivalent. Nor would it affect the landlord, the relations of land-lords and tenants, housing and town and country planning law, matrimonial law, or the law of inheritance.So far, the sample taken by the Committee in its assiduous study of the matter fully bears out what we then said. I commend the Reports to the House, and again thank the Select Committee for the herculean task that it is continuing to undertake, and which is clearly displayed so well in these three Reports.
§ 5.11 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I hope that the House will forgive me if I add only a few words in support of the two noble and learned Lords who have spoken so far. I have in fact lost the large wad of technical notes which I had prepared against this occasion, which I hope will greatly encourage those noble Lords who have endured so far, for the subject is, as they will by this time know, excruciatingly technical and, it may be, to those who are not eager and keen academic lawyers, somewhat dull.
I wish to confine my remarks almost entirely to the Van Duyn case, and to 337 endorse some of the things that have been said, because there is a real danger of an inconvenience arising by reason of the decisions which have been made by the European Court. Before I do so, I should like to thank the noble and learned Lord, Lord Diplock, who has performed a very real service to the House and to the country by the work that he has done and is continuing to do on this highly technical subject. The fact that it gives so little trouble is really a mark of the success and importance of his work, and no indication whatever that it is of no interest to the community. I should also like to thank the noble and learned Lord on the Woolsack for his lucid speech in defining the Government's attitude.
The reason I wanted to say something about the Van Duyn case can be simply stated. When I gave the House during the course of, I think, the Committee stage of the Bill which enabled us to accede to the Common Market, a kind of preliminary inspection of what I then ventured to call "Eurolaw", I made a generalisation which is now becoming decreasingly true. I said that, broadly speaking, there were two sorts of Community subordinate legislation: Directives, which were designed to make Governments pass either legislation or Regulations of their own to conform with the European law, and Regulations and parts of the Treaty—but particularly Regulations—which required no action but which had automatic effect, and would be given effect to in the courts of this country. This was rooted in the very plain language of the Treaty itself, and although I indicated, because it was already becoming apparent, that there would be exceptions and that there were possibilities of Directives which had direct application like Regulations, these were at that time very exceptional and very few, and I advised the House at that stage to disregard them as unduly complicating the situation.
This doctrine of the direct applicability of some Directives has been developed since we joined the European Community. I am glad that both noble and learned Lords have indicated that this is a really very small matter, small in dimensions, and relatively unimportant in comparison with the great issues which will be dis 338 cussed in the country in the next few weeks. But on the assumption which I make at any rate for this purpose, and certainly which I hope I make correctly, that we remain in the Community, there is none the less a real possibility of inconvenience arising from what has happened, and I want to explain to the House that inconvenience as I see it.
The business of the European Court is to enforce the law of the Community and to declare the law of the Community, and to prevent evasion. Like the noble and learned Lord from the Cross-Benches, I do not want to impugn the validity of any of the decisions that have been passed. This is not because of any doctrine of dog not eating dog—on the contrary, "dog" is almost my favourite diet—but because to impugn the only court which has jurisdiction in the matter is a somewhat airy and unprofitable exercise (except for academic lawyers who make their living by it) and also because they have different objectives in view to those which I want to discuss before the House this afternoon.
What has really happened is this. A Directive is supposed to tell a country what it ought to do to make its own law conform with that of the other countries in the Community. Suppose it does not do what it is told to do. The Court said quite early on that if there was a definite, definable obligation, and if there was a time limit and nothing whatever happened, the law was to be considered as directly applicable, so that it would not be any good if any country did not do what it was supposed to do. That was fairly all right, because at a given moment of time if one was advising one's client one would know that that time limit had expired, and from that moment onwards the law would be directly applicable. But it has now gone much further than that, and it is said that even if the country does not default in its obligation there are some Directives so plain in their nature that they have operation from the time when they are passed or given by the Council.
This is what might give rise to considerable inconvenience. As the noble and learned Lord on the Cross-Benches pointed out, supposing the country does do, or thinks it has done, or tries to do, what is expected of it in the Directive and there happens to be a botch-up by the 339 Parliamentary draftsman—he gets it slightly wrong—it is then that the inhabitants of the country concerned will act upon the Regulation which purports to be in compliance with the Directive, will make their own arrangements, enter into commercial transactions based upon the faith of it, and may later find retrospectively the European Court declaring that, as from the beginning, the Directive itself was what you had to look at as a text, and it is different from the Regulation which has been imposed by the country.
This is a very small and technical matter, but it is ultimately the kind of mistake which ought not to be allowed to happen, because it is intolerable to the very few people who might find themselves in that situation. The fact that they are very few is really of small importance if the difficulty is one which can be avoided. 1 think that it can be avoided more or less on the lines which the noble and learned Lord suggested without in any way impugning what the European Court has decided.
It really is important that if the Council decides that it intends to make a Directive effective and of direct application ab initio it should say so. It should also in its Directives make it quite plain if it does not want it, and if it does want the Regulation to be imposed by local legislation it ought to say that. That is something which has nothing to do with the validity or otherwise of the decisions of the European Court, which are made in the interests of enforcing compliance with European law, with which I perfectly sympathise, but it is something that can be done by the Council of Ministers by a little careful draftsmanship. They have only to address their minds to the problem at the time when they issue the Directive, and answer the problem in such a way that nobody should be left in any doubt.
Personally, I think that there are a great many subjects which are best left to the local legislation of the countries concerned. It is not something which will need to be done on a great number of occasions; but when it is done let there be no doubt about it. I think that the noble and learned Lord on the Woolsack has given the assurance for which the noble and learned Lord, Lord Diplock, asked, and I am sure that when—I was 340 going to say the "nonsense" of the Referendum is over (and I hope it will be and a favourable result obtained), the Government, led by the noble and learned Lord on the Woolsack—if they still remain in Office and if they are still united on every other subject, which does not look very likely—will then set about doing what the noble and learned Lord promised to do.
§ 5.21 p.m.
§ Lord DIPLOCK
My Lords, I am very grateful to my noble and learned friend on the Woolsack for the very sympathetic reception which he has given to the three Reports of the Committee which have been the subject of the discussion tonight. I am particularly grateful to him for his assurance that the Government will consider, with the Council of Ministers and with the authorities in Brussels, the possibility of applying the solution to the problem which has been the main subject of discussion.
I hope that nothing that I said in opening this debate gave rise to the impression that I considered that the risk to which I referred in my speech, and which has been elaborated with much greater clarity by my noble and learned friend Lord Hailsham of Saint Marylebone is a risk which is of substantial size; that it is likely to occur on more than a minimum of occasions. But there is the risk; and if it can be eliminated let us eliminate it for the reasons given. It is not all that easy to say that the risk may not extend. My noble and learned friend on the Woolsack quoted a passage from the judgment of the court in the Van Duyn case, where they said it is necessary to examine in every case whether the nature, general scheme and wording of the provision in question are capable of having direct effects on the relations between Member-States and individuals. There is—and this is the difficulty at the moment and why one wants to get the solution enforced now— no case law beyond the Van Duyn case itself which sets down how the criteria are to be applied. This is a topic which it is in the nature of judicial decisions to develop. If anyone had been asked in 1972, when we were debating the European Communities Bill, whether a Directive could in any event (apart from the kind of Directive which simply puts 341 a time limit to something which was already directly applicable) be itself directly applicable, I at any rate—and, I think, everyone in this House and everyone I know familiar with the Treaty— would have said, no. It has developed one step, as case law does develop, in the Van Duyn case. Let us make sure that it does not develop further. So long as there is a risk of its developing further, the uncertainty is made the greater. That is why I am grateful to my noble and learned friend on the Woolsack for the assurance that the matter will be looked into.
May I say one thing in ending? I ventured in my introductory remarks, when I tried to get the matter into perspective, to say that the way that Parliamentary sovereignty operates depends on us; the control which Parliament can have upon the way Ministers exercise national sovereignty depends on the machinery which we create ourselves in Westminster to ensure that there is an opportunity for discussion and for making known to Government the views of the Members of this House. This debate I think has shown that if this House uses the machinery which has already been set up, it is possible to convey to Government 342 the views of this House and to bring those views to their attention so that they may pay regard to them when exercising sovereignty on behalf of the United Kingdom.
§ On Question, Motion agreed to.