HL Deb 17 February 1976 vol 368 cc399-417

4.52 p.m.

Lord PEDDIE rose to move, That this House, having regard to the Twenty-fourth Report of the Joint Committee on Statutory Instruments (H.L. 262, 1974–75) and the Thirty-third Report of the European Communities Committee (H.L. 326, 1974–75), is of the opinion that the Measurement of Cereals for Import and Export Purposes Regulations 1975 (S.I. 1975, No. 655), should be withdrawn. The noble Lord said: My Lords, The wording of the Motion appears somewhat technical and that, I am afraid, is likely to obscure the real issues involved in the Motion. I can assure my noble friends that, in spite of my membership of the Agricultural Committee of the Council of Europe, I have not developed a passionate interest in the measurement of grain. I raise this matter because it is something which is of vital public importance.

The Motion raises an important point of principle concerning the extent to which EEC Directives can become law in this country without the approval of the British Parliament. The regulations referred to are intended to give the force of law in this country to the contents of EEC Directive No. 71/347, which is concerned with standardisation, for the purposes of trade in grain between Member-States, of the method of measuring the specific gravity of grain. We are concerned with a Directive and I am sure that some Members will be aware that, under Article 189 of the EEC Treaty, a Directive is binding upon each Member-State as to the result to be achieved, but that it leaves to the national authorities, Parliaments and so on, the choice of the form and methods for achieving the result.

It will be common ground that a Directive such as that with which we are concerned does not, on its adoption by the Council of the Community, have any direct legal effect in this or any other Member State; but each Member State is under an obligation to give legal effect to it in its own territory and by its own legislative methods. In order to provide a convenient way of giving effect to Community Directives, Section 2(2) of the European Communities Act 1972 was enacted. That subsection provides that, subject to certain conditions set out in a Schedule, any designated Minister may, by regulations, make provision for the purpose of implementing any Community obligation. The regulations so made, if the draft has not been approved by each House of Parliament, are subject to annulment by resolution of either House. So, when the United Kingdom is under an obligation to give effect to a Community Directive, this can be done by regulations made under Section 2(2).

The Cereals regulations with which my Motion deals are made under Section 2(2) and give effect to Directive No. 71/347. To that extent, they are perfectly legal and valid. The objection which I take to them—and it is more than an important objection; it is a vital one—is that they purport to go on to give effect to any Community Instrument. replacing, supplementing or further amending that Directive ". I am sure that many noble Lords will already have read the Statutory Instrument in question. Giving an indication of its purpose and after dealing with the question of the storage of grain, paragraph 2 goes on, and to deal with any instrument replacing, supplementing or further amending that Directive. In passing, it occurs to me that if one reads the Statutory Instrument one sees that the explanatory note includes no reference to the point which I am now making as to the way in which I believe this particular aspect of the Statutory Instrument is ultra vires. In other words, the Ministers, by their regulations, have tried to give effect not only to Directive No. 71/347 but also to other Directives which are not at the moment in existence but which may possibly come into existence at some time in the future. However, Section 2(2) of the Act only confers power to implement Community obligations in the United Kingdom, and plainly no obligation has yet arisen about these hypothetical future Directives. Therefore, it is not within the power of the Ministers to try to implement them. The proper course would have been for the Ministers to leave out of account the possibility of future Directives on this topic. Should any be made, they can be implemented by further regulations which would he subject to the normal methods of Parliamentary surveillance.

There is a further objection to the present regulations. In my opinion, there is an attempt to create a situation in which, if a Directive on this topic is adopted by the Council in the future, the Directive will automatically have effect in this country. Without these regulations this is something which the EEC Council could not achieve. Therefore, the Ministers are, in effect, trying to confer legislative powers on the EEC Council. But the scheduled conditions imposed on Section 2(2) powers show that it was the intention of Parliament that the designated Ministers should not delegate any of those powers to anyone else. Para graph 1(1)(c) of Schedule 2 of the 1972 Act provides that the Section 2(2) powers shall not include power to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument … The words used are apt to cover the various forms in which subordinate legislation is made by authorities in the United Kingdom, but they are wide enough, and show an intention, to prohibit the delegation of legislative powers to some outside body such as the Council.

There is no need for me at this stage to go in detail into the provisions of Directive No. 71/347 itself. It prescribes how the "EEC standard mass per storage volume", (that is the specific gravity) of grain is to be measured. It goes on to provide that in trade in grain between Member-States, wherever the standard mass per storage volume is mentioned, this must be described as the EEC standard. It makes it a criminal offence to use the term "EEC standard mass per storage volume" if the standard mass had not been measured in accordance with the Community requirements.

On behalf of the Ministers it has been argued that there is much convenience in avoiding a multiplicity of United Kingdom regulations; that it is far better to attempt a comprehensive regulation; and that any amendments of the Directive No. 71/347 are likely to be only technical in character. The Select Committee Report to which I refer in my Motion, condemns this Statutory Instrument; also makes quite clear that it appreciates the convenience of the draftsmen. It also points out that it is quite true that the grain trade is highly organised and is probably quite capable of keeping a vigilant watch on any journal of the Community so as to be aware of any changes. But what if the precedent is established and the statutory instruments can relate to trade areas where they are not so highly organised, where they are not likely to be able to keep tabs on whatever changes take place in EEC regulations? They can run the risk of a criminal offence without even knowing what that offence was; and certainly our own Parliament would have no control at all over the nature of the regulation that is imposed upon those people. I know that it is possible for the grain trade in this particular case to advise itself of what an amending Directive may say, but it is not good enough. So I need not pursue that particular point.

All these considerations which are put forward carry no weight if, as is submitted, the use that has been attempted of the powers granted under the 1972 Act is, in principle, wrong. This is wrong under the 1972 Act. Whatever administrative benefit may flow from dealing with it in this manner is beside the point, and any arguments that this particular trade is so well organised as to be able to deal with it is also beside the point. Let us deal with the possibilities where they will not be so highly organised and we shall be forgoing our right as Parliament to have control over the regulations that affect the conduct of our commercial and economic life.

The regulations are effective for the time being to enforce the present Directive No. 71/347. But it is not accepted that this justifies leaving them in force so that they can be employed to enforce Directives which have not yet been made. In my submission, they were wrongly made, and they should be withdrawn and replaced by a suitable provision. I am sorry that the noble and learned Lord, Lord Diplock, cannot be with us today because he has been in hospital recently. I know that he had the intention of giving me some support, as a member of the Select Committee on the European Communities (whose Report I have quoted) and chairman of its law sub-committee. I regret the loss of a formidable advocate who would have presented to this House the legal niceties of the points I am making. But I have approached this matter not from the question of the legal niceties, but from the basic principle that is involved; one that is vital to the Community.

I sincerely hope that the noble and learned Lord will accept the points that I have made, and recognise that probably somewhere along the line a mistake has been made. But fortunately it is a mistake which can be corrected, and I am sure that in its correction there will be a clear indication of the recognition of the rights and responsibilities of our own Parliament. My Lords, I beg to move.

Moved, That this House, having regard to the Twenty-fourth Report of the Joint Committee on Statutory Instruments (H.L. 262, 1974–75) and the Thirty-third Report of the European Communities Committee (H.L. 326, 1974–75), is of the opinion that the Measurement of Cereals for Import and Export Purposes Regulations 1975 (S.I. 1975, No. 655), should be withdrawn.—(Lord Peddie.)

5.7 p.m.

The LORD CHANCELLOR (Lord Elwyn-Jones)

My Lords, I am sure that the House is grateful to my noble friend for drawing to our attention what I agree with him is an important matter of principle. No doubt we are all grateful to him for treading so skilfully over the minefield of technicality which confronts us in the discussion of this matter. I hope that he will forgive me for endeavouring to deal at any rate with some of the legal niceties that occur. I agree with him that it is very unfortunate that the noble and learned Lord, Lord Diplock, is not with us, but I am happy to inform the House that he is making very good progress and I hope that we shall see him among us soon, for his assistance in this field is invaluable to Parliament.

Criticisms which have been voiced by my noble friend, and by the Select Committee on the European Communities in its 33rd Report for the Session 1974–75, and by the Joint Committee on Statutory Instruments in its 24th Report, are serious criticisms and call for careful consideration by the House and, of course, by the Government. In considering the measurement of cereals regulations it may be helpful to bear in mind the general background of the powers under which the regulations were made. Happily, in doing so, I do not think that it will be necessary for me to try to explain the mysteries of the definition of the "standard mass for storage volume" of grain with which the statutory instrument is concerned. Under the Treaties relating to the European Economic Community, we, as a Member, have a duty to give effect to certain obligations imposed on us by the Community. If existing legislation is insufficient to achieve this, fresh legislation can be passed by Parliament. But this method is expensive and makes heavy demands on Parliamentary time. In view of the number of instruments involved and the speed needed on some occasions, it would be quite impracticable to achieve what would be required by legislation. Accordingly, machinery is provided by Section 2(2) of the European Communities Act 1972 to which my noble friend referred, which, among other things, enables the obligations I have mentioned to be implemented by Orders in Council or by regulations, subject to the usual Affirmative or Negative Resolution procedure.

These powers were used to make the measurement of cereals regulations with which we are concerned. They give effect, as has been explained, to a Community Directive establishing a common method of measuring the specific gravity of cereals. The Directive—Council Directive 71/347—defines a standard mass per storage volume, which is to be expressed in kilogrammes per hectolitre and is to be ascertained by measurement with a standard instrument, with the exact description of which I need not trouble the House. Indeed, it takes up six pages of the Directive.

For reasons of economy and the limited specialised interest of the subject matter, this definition has not been reproduced in the regulations, which merely refer to: ‖ "the EEC standard mass per storage volume as defined in the Community provisions". The regulations require this EEC standard to be used for the purposes of the import and export trades in cereals between the United Kingdom and other Member-States, and declare that the expression of the characteristic in other terms is to have no effect. They also prohibit—and, as my noble friend has pointed out, this is an important matter—improper use of the EEC standard, and make that subject to a penalty of £20. I should add at this stage that there are transitional provisions in the Treaty of Accession for preserving for the time being the unit of measurement in pounds per bushel, which has been traditionally used in the United Kingdom and in Ireland.

As my noble friend has made so clear, the objections to the regulations arise from the form of words used in paragraph 2 of the regulations to define the words, "the Community provisions". The paragraph says that "the Community provisions" means: Council Directive No. 71/347/EEC.… as amended, and any instrument replacing, supplementing or further amending that directive ", and it is those last 10 words, of course, that are objected to. If any future Directive were to change the standard, they mean that the new standard would take effect automatically in the United Kingdom without requiring any further change in our domestic law, and if that came about the United Kingdom citizen would be bound to use it and would be subject to penalties if he used it improperly. The Select Committee and my noble friend therefore claim that references to future Community Instruments are in that way ultra sires in the context in which we see the reference in the Instrument.

My Lords, there is no doubt that the reference to amendments by future Community Instruments in relation to the definition of standard mass per storage volume would have the advantage of avoiding the need for new domestic regulations if and when the standard is altered by the Community. Administratively, as my noble friend has said, that would be convenient. In practice, such regulations would have little content save to introduce a technical reference to the amending Community Directive and perhaps fix a date for the operations of the revised standard. But whatever the administrative convenience may be. I quite agree we have to watch carefully the point of principle and what is permitted by the legislation.

Three objections have been advanced in the Committee reports to what is contained in the regulation. First, the Select Committee says that the power conferred by Section 2(2) of the European Communities Act 1972, to make provisions by regulations: … for the purpose of implementing any Community obligation of the United Kingdom", is confined to obligations which are in-cumbent on the United Kingdom under the treaties at the time when the power is exercised. It is suggested that the attempt to provide for the incorporation, by reference, of definitions which may be substituted for the existing definition by some instrument which has not yet been made is ultra vires.

The second objection raised by both Committees is that paragraph 1(1)(c) of Schedule 2 to the 1972 Act forbids Ministers, in exercising their powers under Section 2(2) of the Act: … to confer any power to legislate by means of orders, rules, regulations or their subordinate instruments, other than rules of procedure for any court or tribunal ". The Committee suggests that this makes manifest the intention of Parliament that a Minister, designated to exercise sub-ordinate legislative powers under Section 2(2), was not to delegate any part of those powers to anyone else. By providing that amendments made by a future Community Directive are to be given the force of law in this country, the regulations, it is said, are attempting to confer on the Council of the Communities legislative powers in the United Kingdom which may not be delegated in view of the paragraph which I have just quoted. Thirdly, the Committee say that, while recognising the convenience of drafting in the manner which has been adopted, they criticise the method that is used as imposing on individuals an onerous duty to watch the Official Journal of the Communities to see whether, as a result of a change in the Directive, they are committing an offence.

My Lords, I do not find that all these criticisms are altogether conclusive, or that each is conclusive, and I would suggest that at any rate the last two criticisms carry far less weight than the first; and it is really upon the first that my noble friend has rightly, if I may say so, directed his fire. Can it really be said, in relation to the second objection, that by leaving a matter to be determined by a future Community Instrument one is conferring: power to legislate by means of orders, rules, regulations or other subordinate instrument", which the Schedule to the 1972 Act does not permit? Surely the subordinate instrument contemplated there is some legislative Instrument issued within the framework of our own legal and legislative system, and not one emanating from an entirely different legal order.

An EEC Directive is not in any normal sense a subordinate instrument in the law of the United Kingdom; and, indeed, in Section 2(2) of the Act, to which the Schedule is related, identical words are used in a context where they could not possibly mean Community Instruments. Reference to Section 2(2), and in particular to that part of it which follows paragraph (b), makes it clear that the words "subordinate instrument" are there used in the context of the exercise of a "statutory power or duty" conferred or imposed on a person by United Kingdom statute to legislate by means of orders, rules, regulations or other subordinate instrument. "Subordinate instrument ", therefore, in that context, is not apt to include Instruments of the EEC.

Paragraph (1)(c) of Schedule 2 should, I submit, be similarly construed in its reference to the statutory powers conferred by Section 2(2) of the 1972 Act. Whatever itse precise scope, paragraph 1 (1)(c) cannot be construed as referring to an EEC Instrument, and accordingly does not impose such a fetter as is suggested on the power under Section 2 to legislate by order or regulations. The view which I have formed on this matter is fortified by the best legal advice which is available to the Government on this subject.

Again, in dealing with the presentational matter, while presentational convenience for lawyers and members of the public must always be an important consideration, obviously that consideration should not decide the propriety, least of all the vires, of using the method of legislation now under challenge. That leaves the first criticism that I mentioned, which is the most important one and the most significant; namely, that a power to "make provision for the purpose of implementing any Community obligations of the United Kingdom or enabling any such obligation to be implemented" cannot be exercised to give effect to an obligation which is not yet in force. I believe there is a great deal of cogency in this criticism and in this argument. However, there is room for a different interpretation. The words "enabling any such obligation to be implemented "could be said to be looking to the future—to authorise the preparation of action for implementation when at a future date an obligation comes into effect; and in a section which is designed to bring about implementation of Treaty obligations, it is perhaps permissible to assume that the intention of Parliament must have been to confirm the most effective delegated powers rather than powers which would still fall short of their objective.

However, having said this, I can assure the House that the Government and I are very ready to accede to the general sense of what has been expressed in the reports of the Committees and in the speech of my noble friend; and that, in the circumstances, we are prepared to amend these regulations by deleting what I might describe as the offending last ten words of the Instrument. I hope that my noble friend Lord Peddie will not press me to withdraw the regulations now and at once; since, as the Report of the Select Committee itself concedes, they are not open to objection in their operation at present. But I can give him and the House the firm assurance that they will be amended before any further Directive issues from Brussels which could bring the offending words in the regulations into operation.

Accordingly, I hope that my noble friend will be content to accept that assurance from me. It hails as important and significant his raising the matter in the House today and it is, I think, a valuable illustration of the role of the Committees which are set up in maintaining the oversight, the control, of Parliament over this aspect of Directives emanating from Brussels. If, accordingly, my noble friend will in due course be prepared to withdraw his Motion I can assure him that I will give effect to the undertaking that I have given the House.

5.23 p.m.

Baroness ELLES

My Lords, we all owe a great debt of gratitude to the noble Lord, Lord Peddie, for drawing the attention of the House to a matter which, on the fact of it on the Order Paper looked a very simple matter relating to cereals and the CAP; but as your Lordship will have heard there is a major principle involved in the drafting of this Statutory Instrument. We have heard a clear explanation of the principle both from the noble Lord, Lord Peddie, and matters of detail from the noble and learned Lord who sits on the Woolsack. I should say at this stage that I was prepared to speak after the noble Lord, Lord Peddie, and was not aware of what the noble and learned Lord was going to say. Certainly, with regard to the legal aspect that he has dealt with very closely, I should like to be able to look at what he said when it is published in the Official Report because this is not a matter on which, I think, anybody with or without legal training could take a decision lightly. It is clear that there are very serious matters of principle involved not only as to the drafting of the Statutory Instrument but also as to the implementation as described by the noble and learned Lord. I must confess that the advice that I have had was not entirely on all fours with the statement made by the noble and learned Lord; and therefore I think that it would be wrong for me to say that I accept in totality what he has said without studying it myself and without having further legal advice on the matter. There are legal experts and legal experts; and even though it comes from the mouth of the noble and learned Lord, I know that he will accept that opinions can differ on this matter. Perhaps I should say at this point how much I regret the absence of the noble and learned Lord, Lord Diplock, who would undoubtedly have made a valuable contribution to the findings on this very difficult legal point.

My Lords, there are two other points that I should like to raise, apart from legal ones which I will leave aside for the time being. These are the consequences of this Statutory Instrument. Even if no further Directive has been issued replacing, supplementing or amending the existing Directive, it is surely undesirable that the definition of "Community provision "as now contained in the Statutory Instrument should remain; not only for the consequences it might have in the future—although I accept that the noble and learned Lord has given an under taking that this will be altered before any future Directive on this subject matter is issued—but it surely would create a very bad precedent for the future drafting of such Statutory Instruments which are meant to bring European Community legislation into United Kingdom legislation. I wonder whether the noble and learned Lord would look at this particular point not only in relation to the Directive directly related to the subject in hand, but also that it might remain as a precedent for the future drafting of such Instruments. This surely would be undesirable.

The political implications of the definition as it stands are clear. Over and over again, both during debates in both Houses and in speeches throughout the country, the legislative powers remaining to the national Parliaments, as I understood it, were very clearly defined in the European Communities Bill as it was before it became an Act. If the definition contained in the Instrument were to be allowed to stand, it would be in total disregard of the intentions of the Act as well as against the letter of the Act by giving powers to the Council of Ministers in Brussels to which they are not entitled.

It is also the administrative implications which are of some concern and to which I feel the attention of your Lordships should be drawn. The 24th Report from the Joint Committee on Statutory Instruments, ordered to be printed on 1st July 1975, drew the special attention of both Houses of Parliament to the fact that the regulations go beyond the powers conferred in the present Act. Nobody appears to have taken any action on this and it was only by the publication of the 33rd Report from the Select Committee of this House on the European Communities, in which the arguments were again set out, that attention was drawn to the fact that the definition "Communiy provision"is not in accordance with the European Communities Act 1972 and in their opinion is ultra vires. Therefore, we must ask what notice is taken of these Reports. Do the Government not have any responsibility for acting on the findings of the Joint Committee or do they, if I may say so, keep quiet until some other Committee comes up with a following Report and until somebody with the determination and vigilance of the noble Lord, Lord Peddie, is able to bring it to the notice of this House?

My Lords, we all know that there are grey areas in Community legislation and great difficulties in defining the effect of Directives and the effect of regulations and in our legislation there are areas where the European Court has not yet expressed opinions on some of these matters; but I would suggest that in the case of two Committees of this House with Members of the highest distinction and legal knowledge as well as experience, attention should be paid seriously to the content of their Report; and that where a document, or parts of it, are said to be ultra vires, surely the Government of the day should be responsible at least for making a statement as to whether the findings of these Committees are correct or whether they would be prepared to withdraw the Instrument and to make the necessary amendments The intention of including the definition was no doubt one of convenience based on analogies in Statutory Instruments relating to ministerial orders under the United Kingdom Acts of Parliament. There is a clear distinction between Statutory Instruments implementing United Kingdom legislation and those implementing Community Instruments, and the distinction must remain clear. I submit that convenience is no excuse for the possible abuse of powers by Ministers.

Having said this, we must express gratitude to the noble and learned Lord for his undertaking that this Statutory Instrument will be amended. I ask him to look and see whether any other Statutory Instruments have been drafted with the definition of Community provisions as it stands in this particular Statutory Instrument. We ask that an amendment should be applied to past Statutory Instruments with this definition as well as to future Statutory Instruments. Therefore, I should like to express our deep gratitude once again to the noble Lord, Lord Peddie, for having drawn our attention to this serious matter of principle regarding the relationship between the Community legislation and United Kingdom legislation. He has shown the value of eternal vigilance in this field.

5.31 p.m.


My Lords, I came to the House this afternoon not to speak but to vote. I am still prepared to vote and I shall follow the advice of the noble Lord, Lord Peddie, in this matter whether he accepts the assurance given by the noble and learned Lord the Lord Chancellor or cares to carry the matter to a Division. There is no more important question of principle coming before this House in this Session than the matter which my noble friend Lord Peddie has brought to your Lordships' attention this afternoon. I should like to congratulate him on the vigilance he has shown, and the skill with which he outlined a difficult case.

The facts are that of course we are a subject people; we have to do what our masters tell us, and our masters are not now either in another place or in this House; they are in Brussels, and that is what the noble and learned Lord the Lord Chancellor this afternoon has confessed. Early on in his speech he outlined the requirements of the Treaty and the legislation related to the Treaty. He used a very interesting word. He said Parliament can implement the requirements of Brussels. I am the last person to challenge the integrity of the Lord Chancellor in what, after all, might be a slip of the tongue. My Lords, it is not a question of "can"; it is a question of "must". The Treaty of Rome and the Acts which this House and another place passed require that the Government should do certain things. The fulfilment of that requirement is not now a subject for your Lordships' House or for those in the House of Commons; it is a question of a decision by some nameless, faceless bureaucrat in Brussels who passes the word along the line, and then we do what we are told. That is what has happened here. But what about the safeguards? That is what worries me.

I raise my voice and pay tribute to the work of the Joint Committee on Statutory Instruments and the Select Committee of this House on the European Communities. Those longstops have worked. The noble Baroness is absolutely right: the Government are open to criticism. Why did not they do something about it? The longstops are put in in order to safeguard the rights of this House and another place; but, above all, to safeguard the liberty of the subject. We constantly mate about the freedom, we talk about the freedom, but when it comes to practice we are all in a cage put there by the Government. Would the Lord Chancellor or the Government have given the assurance to this House which has been given this afternoon, had not my noble friend Lord Peddie raised it? I do not believe that for a moment. If they were going to do it, why did not they do it before? That is the point.

My Lords, I am not going to delay the House any more; my voice is where my mouth is. I feel very strongly about this. Once again, I pay tribute to my noble friend Lord Peddie for the action he has taken; and if he cares to divide the House and wants somebody to go in the Lobby as a Teller with him, I volunteer for the job.

5.35 p.m.


My Lords, if I may be permitted to speak again on this matter before my noble friend replies, I hope that he will resist the blandishments of my noble friend Lord Wigg because it would be a some what futile exercise in the circumstances. It is conceded by the Committees that have reported that the Statutory instrument which we are considering is not open to objection in its operation at the present time. I have undertaken to see that it will not operate to give effect to any future Directive without special provision being made by a fresh Statutory Instrument to be introduced. Lest there should be any confusion about the matter, instead of waiting for a future change possibly to be introduced by the EEC, I will see that a remedial Statutory Instrument will come in in the meantime, so the position is safeguarded from that point of view.

I confess that I have heard the noble eloquence of my noble friend Lord Wigg before. Anyone who least looks or talks like a prisoner when he speaks on this theme I know not. I have not met such a person. It is the case that Parliament —I was going to use the phrase "in its wisdom"—decided that in respect of regulations emanating from the Council of Ministers, they operated automatically. But as to Directives, they require domestic legislative steps to be taken, either by an Act of Parliament or, more generally, by Statutory Instruments of the kind that we are considering tonight. I should have thought with great respect to my noble friend Lord Wigg that the exercise upon which we are engaged tonight indicates that the residue that is left to Parliamentary control is not a trivial one, not an unimportant one, but a significant one. I can only say by way of mitigation of the failure of the Government up to now to have done anything about this particular Instrument, that up to now, at any rate, there is nothing wrong about it in its operation.

I express grave doubts upon the point raised by the noble Baroness, Lady Elles, that we should look at this definition in looking back at any Instruments which have already appeared, or forward to future Instruments which may be made, to see whether the definition of Community provisions is acceptable. But I will certainly undertake to see that is done. I am not entirely surprised that she did not agree with my rejection—or, at any rate, criticism—of two of the three objections which were raised by the Committees regarding this particular Instrument. I do not think I need retraverse that ground. I do not deny the possibility that there is another view about them. That is one of the privileges of engaging in the much-maligned legal profession—that, like doctors, we occasionally differ. Giving the best judgment I can to the matter, I agree that the point of substance that was made by my noble friend Lord Peddie is an effective one to which I and the Government will pay due heed, and on the basis of which I have made the undertakings that I have given.

5.39 p.m.


My Lords, may I ask the noble and learned Lord one question? I do not wish to detain the House; I want to hear what the noble Lord, Lord Home of the Hirsel, has to say on another important topic. If there is to be a corrective, an amendment, to furnish a valid interpretation so that the principle of British sovereignty can be established, in the context of this discussion, am I to understand that Brussels will require to be consulted before anything is done?


My Lords, the answer to that is an undoubted negative. This is a decision that Parliament must make in regard to the way it controls the implementation of Directives emanating from the Council. That implementation is entirely a matter for Parliament, and until Parliament implements them, they have no binding effect upon this country.


My Lords, I should like to thank the noble Baroness, Lady Elles, and my noble friend Lord Wigg for their support on this important Motion. I am particularly interested—I hope that the House will be also—in the reinforcement of the point concerning the criticisms as expressed by the Committee on Statutory Instruments and the Select Committee. Both Committees indicated to your Lordships' House and to another place their objections to this Statutory Instrument, and made it crystal clear that it was ultra vires.

As the noble Baroness pointed out, the Report of the Committee on Statutory Instrument was published on 1st July and that of the Select Committee was pub lished on 22nd October. The objections raised in the Reports raised a very important point of principle, but nothing at all happened. It was not until comparatively recently—a matter of days—that I became conscious of the fact that nothing at all would happen, and that realisation necessitated raising the matter in this House. I think that a tribute should be paid to this House for providing the facilities whereby a Back-Bencher can draw attention to matters of this description and at the same time focus the attention of the House on them. Today, we suffer, if I may put it like this, under a welter of paper—showers of Statutory Instruments and papers of all kinds—and if we are not careful we can be blinded by this and lose sight of our democratic objectives.

I must also express deep appreciation of the comments made by my noble and learned friend the Lord Chancellor. He has been able to give the legislative and legal background to the problem. More than anything else, I applaud him for the clear, frank and very decisive way in which he dealt with my objections. I shall certainly not cross swords with him with regard to two of the objections raised by the Select Committee. I am concerned only with the third one, which affects this vital principle. The noble and learned Lord has agreed quite clearly that the offending form of words would cause us to lose many of our democratic rights and to some extent offend our Parliamentary powers. He agrees that the Government will amend the Statutory Instrument.

I also appreciate the comments which were made by my noble friend Lord Wigg, because his blandishments helped to reinforce the point of view expressed by my noble and learned friend the Lord Chancellor. There is always an implied threat in all the blandishments which my noble friend expresses at any time. However, I do not rise to blandishments, but I do appreciate the threat that lay behind them. Therefore, I should like to say to my noble and learned friend that I accept entirely the assurance he has given and the points he has made. I believe that a signal service has been rendered, and I applaud the Government for the frank way in which they have dealt with this. They have not tried to hedge on the matter. There has been a clear recognition that something was wrong, and I think that a great deal of good has been done in raising the matter. My Lords, I beg leave to withdraw my Motion.

Motion, by leave, withdrawn.