§ 3.10 p.m.
§ Lord FRASER of TULLYBELTON rose to call attention to the Approximation of Laws within the EEC with reference to the Twenty-second Report (H.L. 131) of the European Communities Committee on Approximation of Laws under Article 100 and the Thirty-fifth Report (H.L. 199) on the Approximation of Laws relating to Machine Tools and Portable Grinding Machines; and to move for Papers. The noble Lord said: My Lords, the purpose of this debate is to call attention to the Twenty-second Report on the Select Committee on European Communities. The report and what I am going to say this afternoon is very largely devoted to criticisms of certain Directives and proposed Directives for approximation of laws under Article 100 of the Treaty. I want to try and put the criticisms in their proper perspective.
§ The Select Committee is of course in no way criticising the principle of approximation of laws. Approximation is provided for in the Treaty. It is fully accepted in principle, of course, by the Select Committee, provided—and this is the point of most of what the report has to say—that the approximation is carried out within the limits prescribed by the Treaty.
§ The Report sets out what we believe to be a complete list of the Directives and proposed Directives for approximation under Article 100 which have been issued since the Community began. There are about 500 of them, although I personally have not counted them. The vast majority of these Directives and proposed Directives appear to be within the limits of the Treaty and to be proper in their content. No criticism of them is made by the Select Committee in any way. They are mainly devoted to technical matters, to removing barriers to trade and setting common standards on technical matters; and they are entirely unexceptionable in the view of the Committee.
§ The criticism which is made in the report, and which I want to develop in the next few minutes, is made of only a small minority of the Directives. I should like to make that as clear as I can at the 849 beginning. The criticisms made by the Select Committee are mainly on two grounds. Some proposals for approximation are, in our view, defective in their substance—that is to say, they may be badly drafted or may set inappropriate standards. For example, the Thirty-fifth Report of the Select Committee, which is also the subject of this afternoon's debate, dealing with machine tools and, particularly with portable grinding machines, referred in one of its paragraphs to a proposed Directive for restricting the permitted noise level of power lawnmowers. The permitted level of noise which is proposed is such—or was at one time such—that, according to the evidence before the Select Committee, no lawnmower which conformed to that standard would ever be able to cut grass. That seemed to the Select Committee to show some defective arrangement in making the proposal. It may well be that the proposal was made after insufficient consultation with the industry and with people familiar with the technical problems.
§ Another example of a proposed Directive which has been severely criticised is the proposed Directive on selling on doorsteps, which was criticised in another place very severely the other day. Other examples can be cited of Directives which in some way are unsatisfactory in their contents. I do not propose to dwell on them or spend more of my time on them. I believe other speakers in the debate will be referring to some of them. I propose to concentrate so far as I can on the second type of criticism which is raised by the Committee: that is, a criticism of principle, that some recent proposals for Directives for approximation of laws seem to be going beyond the powers of the Community under the Treaty. They seem to be ultra vires. So far there has been only a very small number of proposals which fall into this class. I believe it is less than a dozen out of a total of 500 altogether. So quantitatively and numerically it is a small proportion.
§ However, the principle is important, because if it becomes established and accepted that Directives for approximation can be issued without regard to the limits imposed by the Treaty, or if it be accepted there are no limits imposed by 850 the Treaty, that will mean that the Community may take over fields of legislation within this country, and once taken over they are probably taken over for ever. The Community can remove them from the power of Parliament to legislate upon them. I do not dwell on the fact that this removal is permanent. My noble and learned friend Lord Diplock may be developing that point later. For the moment, all I wish to say is that if there are no limits to what the Community may do, it can take away from Parliament these fields of legislation.
§ The cases which come into this category have all arisen recently, within the past five years, and they have occurred mainly in two fields: partly in the field of environmental control, and partly under consumer protection. The proposals for the issue of Directives on environmental control seem to have originated from instructions issued at a summit conference of the heads of Government and heads of State in 1972. They were no doubt put forward on practical political grounds as being desirable objects to be pursued, without much consideration of the powers of the Treaty under which it was proposed to pursue those objectives.
§ It is fair to point out—and I should like to take this opportunity of doing so—that in so far as these proposals originated from the summit conference, the political conference, they are proposals for which the EEC Commission and their officials are not responsible in origin. The same is true of quite a number of other Directives and proposed Directives. There are requests made from all sorts of sources, industry, Members of the European Parliament and other sources, to have Directives on this, that and the other subject. To some extent, the permanent officials in Brussels simply have no alternative but to give effect to these. I take this opportunity of saying that because there is a popular belief that people in Brussels sit with their heads in wet towels wondering what new Directive they can dream up. I believe that to be an entirely unfair travesty of the truth. I should like to say that in defence of these people.
§ In their terms of reference the Select Committee are instructed to make reports on proposals which seems to raise important questions of policy or principle. 851 That is what this report is about. We think it raises an important question of principle. The question whether proposals are ultra vires has been generally recognised by your Lordships' House as being an important matter of principle, and the Maybray-King Report in 1973 thought that vires should be referred to and drawn attention to when there was doubt whether a particular proposal was ultra vires. The same remit is given to the sub-committee on legal matters.
§ One practical suggestion that I should like to make is that it may be useful, following upon what is done in the Select Committee, if Government departments, when making their comments on proposed Directives, were to express an opinion whether in their view a particular proposal was intra vires. It is the practice for Government departments to make comments on these proposals, directed entirely to their merits; if they could add a comment on the vires, that might be useful and helpful. I should remind the House that the machinery for the approximation of laws is laid down by Article 100 of the Treaty, which provides that the Council of the Community, acting on a proposal from the Commission, is to issue Directives for proposed approximations.
A Directive, under Article 189 of the Treaty, is
binding as to the result to be achieved upon each Member State to which it is addressed but shall leave to the national authorities the choice of form and methods".
That is to say, a Directive tells the Member State what is the result to be achieved, but leaves the machinery, the form and method, to the particular State.
§ That means that once a Directive has been issued it is obligatory on Governments of Member States to which it is addressed to give effect to the Directive by their own legislation. So that if, for example, the Directive on doorstep selling were to be adopted and issued by the Council, the Government of the United Kingdom would be obliged to legislate to restrict doorstep selling in accordance with the Directive. If that is done, there is very little chance of challenging the resulting legislation. One can see that within the United Kingdom any person who was prosecuted or sued for damages for failing to give effect to the legislation 852 based upon the Directive would have no defence of saying that the legislation was ultra vires, because it was based on a Directive that was ultra vires, That is because once Parliament has passed a law, that is the law of this country and no court will listen to an argument that the law itself is ultra vires. The same thing would go for an order or delegated legislation, provided it was made by proper machinery and procedure.
§ There is one possible exception in the case of delegated legislation made under Section 2 of the European Communities Act, but it is rather a refined point which I will not develop for a moment. I merely mention it to show that it has not been overlooked. Subject to that one possible exception, there seems to be no hope of challenging United Kingdom legislation on the ground that it follows upon or is in obedience to a Directive from the Community which is itself ultra vires.
§ The European Court in theory could say no doubt that a Directive was ultra vires, but the matter has never yet been tested in that Court and there seems very little likelihood of its ever being tested, at least from this country, because a private individual could never get a litigation on its legs far enough to get the matter remitted from the United Kingdom courts to the European Court. The United Kingdom Government, whose consent would have been necessary before the Directive was issued in the first place, would be unlikely to want to say immediately afterwards that the Directive was ultra vires. Moroever, there is at least an argument that the United Kingdom Government, which is a Member of the Council of Europe, consented to issue a Directive, could not be heard to say afterwards that this very Directive was ultra vires, because it had agreed to it.
§ The fact that the Government may agree to a proposed Directive does not necessarily mean that the Directive is intra vires with the Community, or even necessarily that the Government think that it is intra vires, because one can see that for political reasons the United Kingdom Government might agree to a proposed Directive in order not to antagonise the Governments of other Member States, or because they had another proposal to put forward next 853 week for which they wished to prepare the way so they were not prepared to oppose a particular Directive this week, opposition to which might queer the pitch of their own proposal next week. Therefore, there might be an act of Government for political reasons which may not conform strictly to the legal position. That is why it is not satisfactory to leave this to the uncontrolled discretion of the Government of the United Kingdom. I refer, of course, to the Government of the day, to whatever Party it may belong.
§ I now come to the reasons why we say that some of the proposed Directives are beyond the powers of the Community. This depends on the construction of the EEC Treaty. It is really upon the construction of the Treaty that we find ourselves somewhat at odds with the view prevailing among the Commission and its staff in Brussels. Article 100 of the Treaty deals with approximation by Directives. It provides for the approximation of such provisions laid down by the law of a particular country as directly affects the establishment or functioning of the Common Market; so what is provided for is an approximation of such provisions as directly affect the functioning of the Common Market, reading it in short.
§ I suggest that two points emerge from that. One is that the approximation is limited to laws which directly affect the Common Market, and the second is that approximation of laws is not an objective of the Community for its own sake. It is merely an instrument for attaining the wider objectives of the Community. The Community was not set up for the purpose of approximating law in general; it merely directs approximation of laws which affect the functioning of the Common Market.
One looks to see what the objects of the Treaty are, and they are set out in Article 2. That details the objects in the following way. It says that:
the Committee shall have as its task … to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it".
Those are the objects which are said to he the tasks of the Community, but—and this is the important "but"—the tasks are to be achieved in a certain way. They are to be achieved by establishing a Common Market and progressively approximating the economic policies of Member States. It is largely upon this that our argument is founded, because your Lordships will have observed that the object of promoting harmonious development and so on is tied to economic measures, approximating to economic policies of the countries. It is not left at large to the Community to pursue the objects by any means. In accordance with that, the White Paper issued in May 1967, just before we went into the Community, stated in paragraph 35, in reference to Article 100 and also to Article 99:
Under both Articles the scope for the creation of Community law is therefore confined to the economic and financial field".
That is the text of my remarks today—that the scope for the creation of Community law is to be confined to the economic and financial fields. That exactly summarises the view that I am trying to put forward. As to whether that is the Government's view now—and for all I know it may not be—I very much hope that the noble and learned Lord the Lord Chancellor, when he replies to this debate, will indicate whether it is their view or not, and, if not, I hope he will be able to explain why the Government have departed from the view expressed in the White Paper of 1967, if indeed they have done so.
§ In my submission, it is of the greatest importance that both Parliament and the public outside should know what is the position. It may be that what was stated in the White Paper is now out of date or for some reason has been found to be erroneous. If so, that ought to be made clear and we should at least know where we are. But at the moment the matter stands, I say, on the words of the Treaty; and if the words of the Treaty are not to be construed in what seems to me to be their natural construction, then, if that is the Government's view, we ought to be told so.
§ I referred to Article 100, which is the main Article, and indeed it is really the only Article with which the present report is directly concerned. There are a number 855 of other Articles which permit approximation of laws within the Treaty, but they are nearly all tied very directly to economic or financial objectives. Article 99 allows harmonisation of tax laws on indirect taxation and Article 101 allows taxation in order to eliminate the distortion of competition. Obviously those are economic or financial matters.
§ The only other Article which is at first sight rather wider than Article 100 is Article 235, which provides for approximation without any direct object in the way of these other Articles. But even Article 235, I may say, is limited to attaining the objects of the Community in the course of the operation of the Common Market. That seems to tie it again to the economic functioning of the Common Market. So there may not be any very easy way to get a wider power of approximation than there is under Article 100. If that is so, the answer may be that the Community will have to amend the Treaty if they wish for a wider power of approximation than is already in existence.
§ I referred to the two classes of recent proposed directives, which we think are vulnerable to the attack of being, in some cases, ultra vires. One of those concerns the environment, and the proposals are put forward and sought to be justified, as I understand it, as being necessary "to improve the quality of life". That is an expression which I have not invented; it is found in the preamble to some of the recent Directives. These proposals for improving the environment follow on a resolution adopted by the Council in 1977, and have led to a programme for improving the environment which was approved by the Council. The preamble to the resolution of the Council is interesting, because it seems to me, if I may put it in this way without being offensive, to give away the weakness of the case for this kind of Directive.
The preamble to the resolution approving of the environment programme sets out at length the objects of the Community from Article 2, which I have already quoted; that is, to promote a harmonious development of economic activities, and so on. But it omits the important words, which I mentioned earlier that the objects are to be achieved,
by establishing a Common Market and progressively approximating the economic policies of member states".
So that in the preamble to the environment programme they leave out all reference to the economic policies of Member States. The inference seems to be that an attempt is being made to bury and forget about the economic limitations, which, after all, are in the Treaty, and to disregard them.
Having made that incomplete quotation from Article 2, the preamble goes on to state that,
…improvement in the quality of life and the protection of the natural environment are among the fundamental tasks of the Community".
That is a proposition which I would dispute, and which I believe the Select Committee, as a whole, would dispute. I should say that I have no particular authority to speak for other Members of the Select Committee, but, in my view, that proposition is unsound. I would say that the fundamental tasks of the Community are those in Article 2 that I have already mentioned, and they are to be pursued only by the economic means that I have mentioned. No doubt, the improvement of the quality of life is a very desirable thing. But I would say that, except in so far as it can be related to economic matters and accompany them, it is not within the present objects of the Community. If the Community wish to bring it within their objects, then the Treaty should be amended to that end.
§ To some extent, it seems that the Commission accept this argument. They seem to recognise that proposals for improving the environment have to be related, to some extent, to economic matters, and attempts have been made to justify some of the environmental proposals on what I would regard as quasi-economic grounds. The argument is, I think, that if one member sets standards of cleanliness against pollution for, say, the air or the water, which require manufacturers in that State to incur expense, and if other Member States set lower standards or do not set any at all, then competition is distorted, because manufacturers in States with lower standards, or with no standards, have an advantage over manufacturers in States which have imposed higher standards, because the latter have to incur expense.857
§ It is said that the functioning of the Common Market is directly affected in that way, unless all Member States have to comply with the same standards. I would not accept that argument for a moment, for several reasons, each of which is sufficient in itself. Let me assume that additional expense would be required to conform to a particular standard of purity. The cost of conforming to that standard would not be a cost which could be said to be directly affecting the functioning of the Common Market. It merely affects, and is one of many factors which affect, the cost of production of the commodity which is being considered.
§ However, there are many other factors that affect the cost of production. For instance, there are natural factors, of which the climate is one. If you want to grow tomatoes, you can grow them much more cheaply in the South of Italy than you can in the Northern part of the United Kingdom, because the climate is better. If you wish to grow the same article here, you must have artificial heating and glasshouses, whereas the people in the South do not need them. But it is not a distortion of competition to take advantage of one's natural circumstances.
§ Conversely, if your natural circumstances are such that you can put effluent into the sea, or into a fast-flowing river quite close to the sea, without doing any harm to the environment, why should you not take advantage of your natural surroundings to do that, even although another manufacturer, who is inland or in a built-up area, has to take expensive anti-pollution measures? In one case, that is merely using a natural advantage in one way, and in another case it is using it in another way.
§ It may be said that standards of purity are artificial standards, which impose artificial distortions of competition, but I do not think that that, either, is justified. After all, some Member States control wages within those States, either by law or by Government policy; others, perhaps, do not. Is it to be said that the control of wages is a distortion of competition? Some Member States may have higher taxes or higher local rates than others. 858 Is that a distortion of competition? How far is it to go?
I do not want to be thought to be treating this matter in any spirit of levity, but I can assure the House that, at a recent meeting with some officials of the EEC Commission, they were asked—I am not sure whether by me, or by one of the other persons present—how far they would press this argument. We said to them:
Aren't there some subjects, at least, perhaps family law or the law of abortion, which you would not contend could be within the Treaty, limited as it is to economic matters?
They solemnly replied that they would not think that that was a self-evident proposition. It was said that States which, for instance, encouraged abortion might really be said to be distorting competition by restricting the labour force; and, conversely, that States which by tax incentives encouraged large families might be doing it the other way around. I regard that as a reductio ad absurdum. But the fact that it was not obvious to some of those to whom we were talking was a little alarming.
§ One recognises that there are sometimes reasons why controls over the environment have to be extended beyond a single Member State; namely, for the practical reason that they would not be effective otherwise. If you have riparian States on the River Rhine, it is no good imposing pollution control on a State on one side of the Rhine, if the State on the other side allows effluent to pour out uncontrolled into the river. That is a reason why you must have an approximation of laws between those particular States. But the practical result to which that seems to point is that the Directive should apply to those States which are themselves directly involved. It should be addressed, perhaps, to the States which are riparian States along the Rhine, or possibly States which border the Mediterranean. But it is not a good argument for addressing the same Directive to all States, some of whom may have no need to control the effluent from factories. It seems to be contemplated by Article 189 of the Treaty, that Directives may be addressed only to certain States; it actually refers to the "States to which a Directive is addressed". So that there is no need for all Directives to be universal to the whole Community. So much for environmental protection.859
§ The other line which, in some cases, seems to have gone beyond the powers in the Treaty is consumer protection. I think we all agree that consumer protection is a very desirable objective and, as a matter of fact, it is an objective which the United Kingdom has gone much nearer to achieving than some of the other Members within the Community. But it seems to me, and, I think, to the Select Committee as a whole, that consumer protection is really only suitable for action by the Community if there are problems across the frontiers between countries within the Community. If, for instance, you cannot effectively protect consumers by having laws in only one country, then it may be necessary to have a Directive for approximation of the laws of several Community countries.
§ In our view some of the recent proposals for consumer protection have gone ultra vires by not recognising this limitation. For instance, there is one at the moment that I do not think has yet been the subject of a report but probably shortly will be. That is a proposal for a Directive on misleading advertising. One criticism to which that proposal seems to be vulnerable is that there is not very much cross-frontier advertising—at any rate not as affecting the United Kingdom. One does not know, but it may be that there is cross-frontier advertising between Germany and the Netherlands perhaps or Belgium and France, or possibly some other pairs of Member States. In that case a Directive perhaps limited to those Member States might be called for, but as a general proposition to apply to all Member States, including this country, we do not think at the moment that there is a case for misleading advertising being made the subject of a Directive.
§ There are also some other objections to the particular proposal on misleading advertising, one of which is that it seems to lay down in some detail proposals for machinery by which misleading advertising is to be prevented. It would involve quite a substantial interference with the procedure and operation of our courts and it seems, to say the least of it, very doubtful whether major upheavals in our court procedure ought to be undertaken for the fairly limited purpose of imposing legal controls on misleading advertising, particularly when we already have a 860 fairly efficient system of controls of our own.
§ Another proposal within this field of consumer protection is for controlling home-study courses. Apparently home-study courses in some cases have been inefficient or they have been over-charging or there have been abuses of those sorts. Again, there is no evidence that we know of why that has to be dealt with in this country and again it seems rather unlikely that cross-frontier abuses of that sort are very extensive. It seems very doubtful, therefore, whether a directive addressed to several countries is really justified.
§ I am afraid I have strayed a little more into detail than I originally meant to, but if I may try to collect together what I have been trying to say. I seek to emphasise the point of principle as I see it. When the United Kingdom entered the Community it did so on the terms of the Treaty which is still in force and which permitted and instructed the Community to seek approximation of laws in certain areas which I have already mentioned. I have tried to explain why, in my view, those areas are limited to the economic and financial fields, but it is perfectly plain that that limitation is not accepted by the Commission, by the Council, I suppose, of the Community. The argument is that the Treaty should receive what is called a "dynamic interpretation". That means to say it should be construed more widely and in a changing way as the Community develops.
§ There may be something to be said for that. If this Treaty had been in force for 100 years, if we had had a really old-established Community with its affairs closely inter-knit, one can quite see that a greater degree of approximation might be necessary and might be appropriate than it is at the moment. But these are early days yet; we are only starting on the Community and if that sort of argument is to be presented, it must be limited to a very narrow field at the present stage. It is important in my submission that there should be some limit defined beyond which approximation of laws is not to be permitted because if there are no limits—and that seems to be almost the position that is being advocated in some quarters—to the field of law in which approximation may be pursued by the Community, that 861 means that the whole of our law, without exception, is open to be compulsorily approximated under the instructions of the Community. It means that Parliament has finally, and in principle, abandoned its sovereignty in the whole field of our law.
§ That is really a very sweeping proposition if that is the proposition which is seriously contended for. When we went into the Community under the Treaty we thought—at least I believe we all thought—that certain fields only of our law were open to approximation in terms of the Treaty. But, if this argument is right, it means that there is no limitation on the field of Community legislation at all and, conversely, there is no field which is exclusively reserved for legislation by our own Parliament. That means, if it is true, that our Parliament is in a weaker position than the Parliament of a State within a federation, because a State Parliament would normally have certain subjects, certain fields of legislation, reserved to it. But, if this argument is really pressed to its extreme, it means that there is no field reserved for our own Parliament, and once that principle is conceded, if it is conceded, it is only a matter of time before Parliament is reduced to the status of a local authority.
§ It may be that 100 years from now that would be a right and proper thing; I do not really know. But what f feel sure of is that at this moment if Parliament and the public realised that there was apparently a serious proposition that the Community had power over the whole field of law to issue Directives obliging Parliament to pass legislation for approximation of laws, neither Parliament nor the public would accept that as a proposition that they would welcome. It is certainly not what we were led to expect in the White Paper published in 1967, to which I referred. I do not believe it is something that would be acceptable to anybody in this country. That is why, in my view, it is so important to have from the Government some statement defining as clearly as possible what in their view is the limit of the legislative power of the Community by way of Directive. My Lords, I beg to move for Papers.862
§ 3.47 p.m.
§ Baroness ROBSON of KIDDINGTON
My Lords, I beg to commend the Thirty-fifth Report on the approximation of laws relating to machine tools and portable grinding machines. The chairman and members of Sub-Committee C felt that it was appropriate for us to present our report in conjunction with the report of Sub-Committee E on the approximation of laws under Article 100 of the EEC Treaty, because it emphasises very much some of the problems inherent in the methods adopted to achieve approximation of laws. All of us, I think, are agreed that the aims of approximation should be the creation of a fair competitive climate within the EEC while at the same time safeguarding both quality and safety standards.
Your Lordships' Committee heard evidence from the BSI, the CBI and the Health and Safety Executive, as well as received written evidence from industrial federations and trade associations. In our view, no problems are expected to arise on the machine tools proposals. They are general and acceptable and would facilitate the breaking down of trade barriers whilst at the same time envisaging the control of safety. It is the special Directive on portable grinding machines, however, which raises several difficulties and we felt, therefore, that it was important to report our findings on this special Directive, as it may have—and almost certainly will have—important implications for future special directives.
Our objections to R49/73 are based on the following issues: first, the inclusion of what is known as EN 68 which is a voluntary standard arrived at in the European standard-making body known as CEN, and which the United Kingdom refused to accept on the basis of safety. In other words, that was a voluntary standard arrived at at CEN which is now included in the technical annex to the Directive and therefore makes this standard mandatory instead of voluntary. As that Directive relates to optional harmonisation rather than complete harmonisation, it would have the following effect in the United Kingdom: Optional harmonisation means that products conforming to this standard must be allowed to circulate freely throughout the Community, but it does not prohibit any 863 nation from having lower standards or no standards at all within their own boundaries. What it does, in fact, is to prohibit a nation with stricter standards, such as the United Kingdom in the case of portable grinding machines, from excluding articles conforming to the EEC standards.
Your Lordships may well agree with the Committee that this would make it almost impossible for this country to enforce standards from our own producers higher than those from the EEC, because that would create unfair competition so far as our own producers arc concerned. Therefore, the United Kingdom as a country is faced with either having two standards circulating within our own nation—that is if we could enforce the higher standard from our own producers, which would create dangers within the industry—or being forced to accept a lower standard than we are at present prepared to accept. It was made very clear to us by both the Health and Safety Executive and the industry itself that this would not be acceptable to them. I will not go into the details of the difference between the standards set by this country as against the EEC EN68 standards.
Another example which was brought to our attention has already been referred to by the noble and learned Lord, Lord Fraser of Tullybelton. That was the proposal of a Directive to restrict the noise of powered lawn mowers. Lord Fraser said that demands for Directives come from different sources. This particular Directive came from Germany where, no doubt with environmental aims in view, they were very keen to reduce the decibels of noise of lawn mowers. As a Committee we had the most marvellous evidence presented to us by a representative of the lawnmower industry in this country; and I must remind your Lordships that the lawnmower industry in this country is bigger than all the lawnmower industries of all the other EEC countries put together, so it should have something of a say in decisions of this kind and so should this country. The proposal which came from Germany was, according to the evidence that we heard, a quite impossible one. It was that by 1980 the noise should be reduced by five decibels. We would all love that, 864 but as a Committee we were convinced by the arguments of the industry—although we are not experts—that this would not be feasible by the year 1980, economically because it would price a lawnmower out of the reach of the average individual, and secondly, as the noble Lord, Lord Fraser, has said, because in the end it would not cut grass.
It seems to me quite amazing that there should have been even a suggestion that a Directive of this kind should come up for serious consideration. I think it came to pass because the consultation with industry within the committees is not close enough. It was pointed out to us, for instance, by our witnesses that on this particular committee the three representatives from Holland were a representative from the Department of Health, a representative from industry and a third representative from the Department of Trade, but at the particular committee meeting when lawnmowers were being considered only the representative of the Department of Health was present and we could all guess what his vote would be. It seems wrong that there is not enough consultation with the actual producers in industry.
So there are two things which we should like to recommend to Her Majesty's Government to look into in relation to special Directives. First, if voluntary standards created in the European standard-making bodies such as CEN and CENELEC are to be used as a basis for technical annexes to Directives, which means that they become mandatory instead of voluntary, then it is desperately important that we should look at the voting systems in those bodies. They are quite different in the two bodies. In CEN there is one country, one vote, and an abstention is not counted. It was in CEN that the decision on the Directive on grinding machines was taken and the voting was six votes for (including coutries such as Sweden, which is not a member of the EEC), two votes against, and five abstentions, which means that in actual fact the decision was taken by a minority of the people entitled to vote. That seems wrong. In CENELEC, who have a slightly better voting system, the votes are weighted, depending on the size of the nations; abstentions count as positive votes. But the difference between 865 the two is that in the CENELEC voting system there is no appeal; in CEN there is an appeal. We would urge Her Majesty's Government to look into these two voting systems and attempt to bring them together and get the best out of both as an approach to governing the Directives which, after all, are going to influence all our lives.
Secondly, evidence was given to us by industry that they felt completely removed from influencing the decisions of the Commission's committees because of course they lie in the hands of Member Governments. It is true that industry has an influence on the decisions of CEN and CENELEC but they are voluntary standards. It has not got a chance to influence decisions when they become mandatory, and I think all the countries within the EEC will have to look very carefully to see how we can have much wider and deeper consultation, both with industry and with consumers, before we make a voluntary standard mandatory by including it in a Directive.
I would say that Committee C generally encourage the harmonisation of standards in so far as they remove technical barriers to trade, but we wish to voice a word of warning to Her Majesty's Government as regards Directives in particular cases. This is because they could militate against the main objective of harmonisation, particularly if the voice of industry is not properly represented and standards are created by default because the voting system does not give due weight either to the size of the Member State, and thus of their markets, or to their involvement in the particular industry. I know that my noble friend Lady Seear, the Chairman of Sub-Committee C, will be taking part in the debate later on the wider issues. In the meantime, I beg to commend the Thirty-fifth Report to your Lordships.
§ 3.59 p.m.
§ Lord TRANMIRE
My Lords, I am sure that the whole House is indebted both to the noble Lord, Lord Fraser of Tullybelton, and to the noble Baroness, Lady Robson of Kiddington, for the way in which they have introduced this subject. If I may add a personal word, I feel greatly indebted to the noble Lord, Lord Fraser, for the way in which he takes the chair at the Legal Committee 866 and allows those of us who have not got quite the same legal attainments and qualifications as himself to understand what it is all about. His clarity and his humour as he introduced this subject made what would be rather difficult extremely clear.
May I say that originally, before we entered the Community, I had certain worries about what the effect of joining the Community would be on our Parliamentary sovereignty. I felt that that sovereignty might shrink under the provisions of the Treaty of Rome and the Treaty of Accession. After experience since we joined I do not think my fears have been exaggerated. Some of the work of harmonisation, as the Commission like to call it, has really shown a confirmation of the fears that some of us held on this issue.
The noble Lord, Lord Fraser, defined the powers under Article 100 and I do not want to repeat them; they will be in the memory of all noble Lords. There has been, I think, a far greater rush towards harmonisation than the noble Lord, Lord Fraser, explained. He has talked about the need to harmonise the noise from lawnmowers, and the noble Baroness also explained that. How that can be anything to do with the establishment and functioning of a common market I fail to understand. But it has not gone just in that close limit. You have had an effort to harmonise the water that we bathe in, the habitat of shellfish, and recently, as the noble Lord, Lord Fraser, mentioned, we have the effort to harmonise our senses of humour under advertising.
I want to spend just a moment or two on that, as Lord Fraser rather delicately kept away from it because no report has been published. It is all right for me because I merely read these; I do not make reports, I merely make observations upon them. This comes in R/511/78, under which all misleading and unfair advertising is to be punished under accelerated procedures and with condign penalties that would be far harsher than any British court of justice would impose. There are laid down specifically the actual maximum penalties. Quite unlike another Committee that has been reporting, these proposals are increasing the maximum penalties far beyond anything in our knowledge.
867 There is a clear definition of what is misleading. It has to be accurate in every respect and not to omit anything. I remember there was an advertisement, "Glaxo builds bonny babies", and yet I have met many noble Lords and others reared on Glaxo who have not very attractive physiognomies. There was an advertisement, "Put a tiger in your tank". Nobody could claim that was an accurate description of what you did when you filled your car, but under this Directive one would suffer at the hands of one's competitors very harsh penalties. That is all under "misleading". There come even stranger ones under "unfair advertising". I do not know if any noble Lords ever take a walk from this noble House towards Great Smith Street. I do every night, and when I get to that corner of Great Smith Street and Great Peter Street I see a large hoarding which says, "Heineken refreshes the parts other beers cannot reach". It is quite clear that is a very dangerous advertisement, which under this Directive would have attracted dire penalties under the accelerated procedures, because any competitor would be challenging that.
I was interested in what the noble Baroness said about the origin of the grinding machines Directive. I have tried to find out what was the origin of the advertising Directive, and they seem to have come from very nearly the same homes. It is rumoured to me that the reason for this advertising Directive was that the German traders objected to the sense of humour of the Dutch across their border, obviously not the English sense of humour, but the Dutch sense of humour. You will notice that the beer which was advertised at the Great Smith Street corner was a Dutch beer, so I have great sympathy with the Dutch. But let me leave the advertising question. It does illustrate some of the problems we are dealing with in this Twenty-second Report.
I agree with and support all the conclusions in this Twenty-second Report of the Select Committee, but in particular I would remind your Lordships of Conclusion (7), which says this:Since the exercise by the Council of the powers given by Article 100 of the Treaty causes an irreversible removal of legislative power from the United Kingdom Parliament, it is essential that the limits of the Article 100 powers should be 868 strictly defined and that the Government should undertake to keep within them".I do hope, in view of this, that Her Majesty's Government will take the necessary attitude when they are discussing these matters in the Council of Ministers. May I remind noble Lords—I am sure I need not remind the noble and learned and Lord himself—of what the Lord Chancellor said in the debate in this House on 21st April (Col. 605 of Hansard). The noble and learned Lord said:The Government have been concerned to ensure that this transfer …—and he is talking about transfer of sovereignity—… should be within acceptable and known limits. The Community only has powers in the clearly defined fields that have been derogated to it by the Member States".I am sure that at that time the noble and learned Lord never envisaged that the Community and the Commission would be acting so far outside the powers which we believed to be in the Treaty of Rome, and through that in the Treaty of Accession.
It seems to me very important at this stage of development of the Community that Britain should put her case clearly, strongly and definitely. What we have signed we will follow and obey, but we will not agree to the Community and the Commission exceeding the powers of the Treaty and thereby diminishing the sovereignity of Parliament. I believe that to be one of the most important acts we can take towards Europe at the present time. I do not believe that this habit they have of introducing Directives closely defining the procedure laid down is what we envisaged when we joined the Community.
I would far rather the procedure of Article 101 was used, although I know it is limited to cases of competition. Where they find the Common Market is being distorted, then there should be a process of consultation between the countries affected, and after that, if necessary, if there cannot be an agreement, Directives should follow. That seems to me to be a more harmonious way. I believe that if the Commission proceeds along its present lines it will destroy the harmony between Member States that is so essential.
Whatever views we took about joining the Community, I believe that today we 869 all have a duty to ensure that so long as we are Members of the Community, the Community works in harmony in the interests of Britain and all the other Member States.
§ 4.11 p.m.
§ The PRINCIPAL DEPUTY CHAIRMAN of COMMITTEES (Lord Greenwood of Rossendale)
My Lords, I should like to begin by saying that I agree absolutely and entirely with the concluding remarks of the noble Lord, Lord Tranmire. Having for many years shared his fears, I now join him in sharing his appreciation of the reports which have been submitted to your Lordships' House this afternoon. I think that we would all wish to congratulate my noble and learned friend Lord Fraser of Tullybelton, the noble Baroness, Lady Robson of Kiddington, and the noble Baroness, Lady Seear, on the magnificent contribution that they have made.
I first met my noble and learned friend Lord Fraser when I was introduced to a club called the "Balliol Rooks" which was a small college discussion group which revelled in the motto, "No respecters of persons". I am glad that in a period of changing values my noble and learned friend is still showing his sturdy radical independence and refusal to compromise with things which he believes to be either craven or confused.
I shall speak very briefly this afternoon because, like the noble Lord, Lord Tranmire, I want to put down simple markers about the political dangers that I think may lie ahead. I am worried by the issues of principle and practice which are raised in the Twenty-second Report and by the example of practice in the Thirty-fifth Report. Like all our reports, of course, these have been unanimously approved by the Select Committee, but individual noble Lords place different interpretations and different values upon them. Perhaps I may say that I agree entirely with my noble and learned friend's interpretation of the duties and powers of the Community.
What weighs very heavily with me is that we are still in the essentially formative stage of the Community. Therefore, I think that now we must be particularly insistent upon refusing to shirk fundamental 870 questions like that of vires. Like the noble and learned Lord, I am to some extent reassured by the fact that so far there is not all that much ground for complaint; but there is ground for complaint, and I believe that there should not be. Indeed, there is a heavy responsibility on the Government in the light of the assurances that were given at the time to the noble Lord and myself in another place that the sovereignty of Parliament would not be in any way affected. I hope that the noble and learned Lord who sits on the Woolsack—I know of nobody better qualified to do this—will be able to give a robust, liberal-minded reply when he comes to define the Government's attitude in reply to my noble and learned friend Lord Fraser of Tullybelton. Unless we make the British Government's views and the British Parliament's views very clear at this stage I think that we shall be in danger of creating very great problems for our successors.
Noble Lords will perhaps not need to be reminded of the advice which was given by Junius two centuries ago:One precedent creates another. They soon accumulate and become law".There is the danger that the consequence of having these unfortunate precedents means that, instead of freedom broadening down from precedent to precedent, it may be narrowing down instead. I have not the slightest doubt that every Member of your Lordships' House would deplore that result as much as I do.
I should like to look just a little further afield. We are sometimes criticised in Community circles for the fact that Britain tends to speak very largely on the lines that something will be in Britain's interest. That, of course, is a perfectly respectable political stance to take, but it is not necessarily the best way of exercising influence. I believe that this is an issue where we are peculiarly well qualified to draw the attention of the Communities and their various organisations to these very real dangers that we see. I believe that advice coming from noble and learned Lords in this House can be especially valuable in that respect.
I should like to underline what the noble Lord, Lord Tranmire, said. Paragraph 15 of the Twenty-second Report reminds us that the result of Article 100, as it is now interpreted, 871is to effect some transfer of legislative sovereignty from Member States to the Community".Moreover, the additional warning that that transfer is irreversible is, I think, particularly disturbing. I am waiting with great interest to hear what the noble and learned Lord, Lord Diplock, who has made a unique contribution to our consideration of Community problems, has to say on this subject.
The Twenty-second Report also reminds us that Directives are not to be regarded as subordinate instruments. They can, indeed, be of equal status with the Acts of national Legislatures. I do not think that those of us who were apprehensive at the time were so wrong in our apprehension, despite the reassurance that we received. However, it is clear that scrutiny must be scrupulous and unsleeping and that we shall need it for many years. I hope that that scrutiny will be in the spirit of what the noble Lord, Lord Tranmire, had to say.
I should like for a moment to descend to a lower level—if I can call public relations a lower level in the presence of the noble Lord, Lord Lovell-Davis—because I think that it would be foolish to think that at present the EEC stands all that high in public esteem and popularity in this country. If the Government really wish to mobilise support, they must discourage the flow of irrelevancies which do, from time to time, seem to come out of Brussels.
I read with very great interest the view that was expressed by Mr. Douglas Hurd, a Member of the other place, when he spoke to a conference last Saturday. The Sunday Telegraph concluded the report of his speech by saying that what Britain needed to do was to point the Community towards the big issues of world trade and foreign policy and away from thefoolish zest for theoretical regulation".Nobody would for a moment question the genuineness of Mr. Hurd's loyalty to the Community, and if Mr. Hurd makes that point it is one that I think we should all take seriously.
My final point really follows from the quotation from Mr. Hurd, it is, that when one looks at the kind of list that is published in this Report, one becomes a little worried, wondering whether there really is 872 a strategic plan behind the work of the Commission. The impression is given that from time to time its choice of subjects really is a little haphazard. It is surely a matter for comment that portable grinding machines should at any rate appear to be taking precedence over those major problems to which Mr. Hurd referred. I do not believe that this dissatisfaction with what is regarded as an interference in so many of our national customs and traditions, can be good unless it can be shown to serve some major advantage or provide some major benefit for the Members of the Community as a whole.
It is my most earnest hope that we shall be able to look back upon Mr. Jenkins' Presidency of the Commission as a time when strategic planning and consideration for vires came into their own. If that is the case, the Community will be much the better for it.
§ 4.21 p.m.
§ Lord O'HAGAN
My Lords, the first report that we are debating this afternoon is, in my view, the most important report that the Select Committee on European Communities has yet given to your Lordships to examine and debate. Perhaps I should explain why I am sitting on the Back-Benches. I have not yet been sacked from the Front Bench on this side of the House; I am merely exercising the traditional right of junior Opposition Whips to speak for themselves from the Back-Benches.
This report, and the pendant to it which has been introduced by the noble Baroness, Lady Robson of Kiddington, give us an opportunity for examining the precise line of demarcation between the control of the Commission and the Community, and our own Parliament. As we are now well into what will be, at the end of it, our sixth year of membership, this is no too early opportunity to take to judge how far we have progressed and how far those fears, as expressed by my noble friend Lord Tranmire, have been justified.
The precise powers under Articles 100, 235, 91 and 101, are not for me, a non-lawyer, to seek to explain or to elaborate. What I should like to do—and what I hope all your Lordships will be hoping that the noble and learned Lord who sits on the Woolsack will seek to answer—is to explore some of the anxieties that the 873 present uncertainty gives rise to. Foolish harmonisation is its own worst enemy. It is a gift to those who wish to destroy the Community. When I was in the European Parliament, with a Danish anarchist friend, I put down a Question to the Commission asking them when they were going to harmonise dog licences. I received the very serious reply that there were no proposals to harmonise dog licences yet. It is the fact that I had a serious reply to such an extremely silly Question that gives rise to some of the anxieties that have led your Lordships to take part in today's debate and to prepare the report which we are now debating.
I wish to take a slightly different line from previous speakers, and I wish to differ from some of the thrust which the noble and learned Lord, Lord Fraser of Tullybelton, gave to his opening remarks. I agree with him completely as regards competition policy; I think that the Community is heading for difficulties on competition policy. We cannot have genuine competition policy without having the same currency, the same tax structure, the same rates of pay and the same health and safety at work legislation. I hope and plead with the noble Lord who chairs the Committee on the European Communities to take this danger on board, to look at this problem and to make some recommendations to the Commission before it is too late. Therefore, I am completely with the noble and learned Lord in what he said about the future of competition policy and its present dangers.
However, what concerned me was the attitude taken by the noble and learned Lord, which seemed to lead me—and I suspect other Members of your Lordships' House, and perhaps even those outside—to believe that the Community was only a creature of law. Of course it is a legal entity; it is a system based on the rule of law. I, for one, welcome that and applaud it as an international mechanism for keeping democracies stable and for advancing their economies. So nothing that I am trying to put forward dissents from the view that the legality of the Community is inherent to its nature. If we question its legality and its legal basis, we are questioning the way in which it works.
874 I am concerned that the Treaty of Rome is more than a legal treaty; in practice, it is a written constitution without an apparatus for updating it. Therefore, the Community, which was founded in 1958, is already grappling with problems that the politicians and lawyers who drafted its original provisions never dreamt of. The "environment" was a word in a dictionary, and "consumer protection" was a glint in the eye of the Consumers' Association in this country and hardly heard of in other Member States. That may be a little chauvinistic, but I think that, broadly speaking, it is true.
The problem to which the noble and learned Lord and the Legal Sub-Committee are addressing themselves is not merely a problem of law; it is a problem that the Community will continue to face because it has no way of equipping itself —because it has no updating procedure—to cope with changing situations. There is no mention of COREPER in the Treaty of Rome; there is no mention of the European Council in the Treaty of Rome. The day-to-day existence of the Community depends on a development of the Treaty of Rome, because if it did not function to some extent outside the Treaty, it would not function at all. Political co-operation—that is not in the Treaty; foreign policy co-operation—that is not in the Treaty.
Therefore, I should like to align myself with noble Lords who say to the Commission, "Stop this foolish zeal to harmonise everything and take a step backwards before you wish to approximate where approximation is unnecessary". I sat for some while under the tutelage of the noble Baroness, Lady White, on the Environment Sub-Committee of your Lordships' Select Committee on the European Communities. I observed at first hand the lack of scientific backup and the inadequate technical detail that the Commission sometimes brings to its proposals. I agree with the criticisms that these Directives are sometimes inadequately based, particularly on scientific matters. There is only one answer to that: strengthen the Commission; reinforce it; equip it; make it less ignorant and make it more accessible to those who are interested, whether in grinding machines or any other aspect of industry which will be affected; open it up and provide 875 opportunities for those with expert knowledge to influence Directives before they are published.
I believe that in many ways the Commission is already more open than the Civil Service here to suggestions from outside. I hope that the noble and learned Lord, Lord Fraser of Tulleybelton, will not consider that I am being cheeky if I say that I detected in his comments on the source of some of the Directives a note of criticism that the Commission had listened to people outside its own doors. I am glad to see that he tells me that I was wrong, because I would take that as something deserving of praise, not as something deserving of criticism.
This occasion provides the Government with an opportunity to tell our friends across the Channel where we believe the door must be shut. It is inevitable that the two systems of law should fall foul of each other, or at least misunderstand each other from time to time. It is especially difficult for those trained in a British legal system, when interpreting the Treaty of Rome, to reach the same view as those trained in a Roman law system who are used to quite different methods of legislation. Thus, conflict and disagreement is to some extent inevitable.
Nevertheless, I believe that this debate will give the Government the opportunity of saying how they feel this protection of the rights that we retained to ourselves when we joined the Community is being secured, and I should like to add my voice in gratitude to all those on the Legal Sub-Committee who have studied this subject to such great profit of the House, and certainly of myself. One of the subjects that they have been studying is home study courses. Noble and learned Lords have plenty of work to do, and I think it is a special attribute of you Lordships' Select Committee on the EEC that they seek to do some home study on European draft legal instruments and then come and inform us about them. Speaking for myself, I am extremely grateful that we have this report as a fruit of their labours.
§ 4.31 p.m.
§ Lord DIPLOCK
My Lords, the Report on the Approximation of Laws is not 876 concerned merely with a technical dispute between lawyers about the rival merits of dynamic or literal interpretation of the Treaty. In my view it raises the most important constitutional issue that we have debated since we debated the passing of the European Communities Act 1972. My only purpose in this debate is to emphasise, before it is too late, the danger of acquiescing in a creeping surrender of our national sovereignty in almost unlimited fields of law.
I want to see, as do many others, the Member States growing closer together in matters outside the purely economic field. I recognise that the Community institutions, particularly the Commission, can provide a useful instrument for doing this by promoting studies, giving opinions, promoting consultations. They can bring about a closer co-operation between Member States with a view to the assimilation of national policies on such matters outside the economic field as foreign affairs, the preservation and improvement of the environment, consumer protection, and indeed all activities which can improve the quality of life, to use a popular phrase which appears now in the preambles to Directives.
At the summit meetings—which, as the noble Lord, Lord O'Hagan, points out, are outside the Treaty itself—of October 1972 and November 1973, the heads of State invited the Commission (and so you cannot blame the Commission for following the invitation) to prepare action programmes for consumer and environmental protection. I suppose there is none of us who would not applaud the objectives. But I, as a constitutional lawyer, am deeply concerned about the methods by which the Commission seeks to achieve those objectives. I am concerned with the constitutional consequences of their useing one method rather than another.
The effect of using Directives under Article 100, the harmonisation of laws, or Article 235, the giving of fresh powers to the Community, is to pre-empt a field of law dealt with until now by national Parliaments, leaving the national Parliament unable to amend the law as laid down in the Directive, or to pass any future Act conflicting with that law. The law is not quite like that of the Medes and Persians; it is amendable, 877 but amendable only by the unanimous decision of every Member State upon the Council
When this nation entered the Common Market it accepted a transfer of sovereignty in matters clearly falling within the field of establishing a common market and approximating the economic policies of Member States. At that time we thought that we knew what the Common Market entailed: the customs union; removal of obstacles to the free movement of goods, persons, services and capital; free competition across national borders; common agricultural policy; common transport policy; common policy on iron and steel. As has been pointed out by many speakers, the White Paper issued before entry claimed that this limited field in which sovereignty was to be transferred so lone as we remained Members of the Common Market, left wide areas of law over which the legislative competence of the United Kingdom Parliament remained intact.
A great majority of the harmonisation Directives still fall squarely within those limits of promoting the Common Market and the economic policies of the State. They are clearly referable to the improvement of that country. There may be other grounds for objecting to them in that they are not sufficiently well thought out. With those I am not concerned. They are within the field in which we did transfer our right of sovereignty. What we can do about that is to make sure that when it is exercised by the Community it is exercised well.
However, there are disturbing signs recently of the use of Article 100 to make Directives which trespass far beyond these limits, and indeed the Commission, adopting a dynamic interpretation of the Treaty, claim that those limits have now ceased to exist, and any measure which claims to have as its objective improving the quality of life is within Article 100, however remote it is from the economic field.
It may be that the Commission is right. It may be that in putting that interpretation on the Treaty it will be upheld by the European Court, if ever it were to get to that Court. My noble and learned friend Lord Fraser has explained the unlikelihood of its doing so. But however that may be, the threatened erosion of 878 national sovereignty, to the first signs of which the report draws attention, can only proceed with the acquiescence of the United Kingdom representative on the Council, because any Directive under Article 100 requires the unanimous approval of all the Member States.
Acquiescing in this extension of directives outside the economic field is acquiescing in the beginning of the emergence of a federal Constitution for Europe under which all legislative power is potentially exercisable by the federation. Unlike the ordinary federal Constitution, there would no longer be any subjects of legislation reserved to Member States; all would be included in a common list of fields of law in which national Parliaments could legislate only so long as a Directive under Article 100 had not pre-empted that particular field of law. There have been only half a dozen Directives to which attention is drawn in the report up till now, but that there have been only a few is no ground for acquiescing in any of them because it is a characteristic of constitutional law—and must be, where there is no direct method of amending the Constitution—that the longer the erosion is allowed to continue, the harder it is to check.
One can understand the temptation of the British representative on the Council to acquiesce in a Directive outside the normal field, and there are two reasons why it is so tempting. The first is that, if its provisions accord with current departmental policy, it saves the trouble of going through the Parliamentary procedure and having the matter examined in the two Houses; by by-passing that and getting it made as a Directive. The second is the temptation that, if the Directive seems harmless so far as its application in this country is concerned, one can give way on it in the haggling that goes on in the Council in order to get approval of some other proposal which seems of more political importance.
That policy is short-sighted wherever the directive is based only on Article 100 or Article 235, and no convincing case has been made out that the differences between our law, and that of other Member States really prejudices the operation of the Common Market. It is short-sighted for two reasons, one of them practical and the more important, constitutional.
879 The practical reason is that our own legislative experience shows that Acts of Parliament meant to deal with new problems in practice tend to need amendment in the not too distant future in the light of experience of how they work. That is even more likely in a Directive which is made applicable to nine States; it will prove in some respects unsuitable for Great Britain, though suitable for Continental States where natural conditions, social habits, traditions and legal systems and procedure are different. Other Member States may, for that reason, not experience the same difficulties as we do. They may be satisfied with the Directive as it stands, and any amendment to suit our different conditions would be to disharmonise law that has already been harmonised, and that is politically impossible in the Council. A harmonisation Directive is a one-way street down which there is no way to return.
The constitutional reason is more important because it involves, as I have pointed out, an irreversible surrender of sovereignty over the subject matter of the Directive. It may be it is right to do so; but, if it is, let us do so with our eyes open. I see no signs that the representatives of this country in the Council are not doing it with their eyes shut. They look to see whether the contents accord with current policy on the topic, not whether the topic falls within the powers that were understood to be transferred to the Common Market when we entered it.
My purpose tonight is not to debate who is right about how the Treaty should be interpretated; the noble Lord, Lord O'Hagan, speaking modestly as a layman, put the case for the dynamic interpretation. Only the Court can ultimately tell us which school is right. My purpose and only purpose tonight is to warn the House of the constitutional implications of what is beginning to happen if it is allowed to continue unprotested and unchecked. I invite the House to urge on Ministers, before they enter this one-way street from which there is no return, to make very sure that the Commission have made out a convincing case that divergence of our law from that of other Member States which the Directive seeks to harmonise really does prejudice the functioning of the Common Market, for unless we do that the creeping irreversible surrender of our sovereignty will go on.
§ 4.48 p.m.
§ Baroness WHITE
My Lords, I have listened to this debate and, as I hoped, have become more and more instructed in the matter. Noble Lords owe a considerable debt of gratitude more particularly to the two noble and learned Lords, Lord Fraser of Tullybelton and Lord Diplock, for the tremendous amount of work they have put into the study of a most profound and fundamental problem which I think is now becoming more apparent than it was when we originally decided to enter the Common Market.
I am particularly concerned of course with the environmental aspects of this problem and I wish at the outset to apologise on behalf of the noble Lord, Lord Ashby. the Chairman of the Environmental Sub-Committee of the Select Committee; he is carrying out his duty as Chancellor of Queen's University, Belfast, and is unable to be here. I think it important that at least one voice should be heard on this topic; the noble Lord, Lord O'Hagan, is a sort of half voice because he was on the Environmental Sub-Committee but unfortunately found he had other preoccupations and is no longer a constant attender.
Those of us who are profoundly concerned about environmental matters cannot but be disturbed by the general trend of the debate so far. Much play has been made of the diminution in our sovereignty which was potentially a consequence of the various Directives, many of which, quite frankly, I disagree with or find very difficult fully to accept. But I should have thought we were fairly naive if we imagined that we could enter into the European Common Market without some diminution of sovereignty.
Much has been made of a passage in the White Paper of 1967 which suggested, I think erroneously, that changes in our own legislation would be confined to the economic and financial fields. I do not think that anyone who had thought with any thoroughness in the matter could have accepted that simpliciter. Quite frankly, I would be much less interested in a European Community that did not concern itself with environmental matters. This positive side has hardly been touched on so far in the debate. The noble Lord, Lord O'Hagan, did, as one would expect, bring it into his speech, but other noble Lords 881 seem to take it for granted that it is desirable that we should continue indefinitely to confine our concern and responsibilities in relation to Europe exclusively to economic and financial matters. That does not seem to me to be the right attitude, whatever the historical basis for it may be. Therefore, personally, at least, I am sympathetic with the expanding view which is now rather taken as common form in the Commission in Brussels. I am sympathetic with it, but I appreciate the very serious caveats that our noble and learned friends have put forward, that at least we should be sure what we are doing.
I think it is only recently that we have woken up to the nature of the path we have taken which fills some noble Lords perhaps with greater apprehension than it does others. We have done so because hitherto we have relied upon our ministerial representatives on the Council of Ministers to fight our battles for us, and on the environment field they have had to fight some very sharp battles on our behalf. But the result of their prowess has been this. Of the 16 matters contained in the appendix to the 22nd report referring to environment, seven have become full Directives and nine still have the status only of Commission proposals. They have the status of Commission proposals because we have not yet acquiesced in them in their present form. In other words, so far, whatever has been done has been done by the United Kingdom consenting. We have a power of veto if we were not prepared, for one reason or another, to go along.
The noble Baroness, Lady Robson of Kiddington, put her finger on a real danger, which is that the unanimity rule which applies in the Council of Ministers does not extend to technical committees of various kinds. As she rightly pointed out, matters of considerable importance could be decided without our full consent even, as she illustrated, on a minority vote, as a result of abstentions or people being absent. That is very dangerous. If those who are of the same turn of mind as I am wish matters of environmental protection and consumer interest to be included in the activities of the Community, then surely the remedy is to extend the legal basis so as to legitimate them.
882 I was a little surprised that neither of the noble and learned Lords—to whom we are most deeply indebted—seems to have given much attention to this aspect. It may take a very long time indeed, I would suspect, in the politics of Brussels. Nevertheless it is not impossible, as I understand it, to amend the Treaty, even though no adequate provision has been made for amendment. It is surely not impossible somehow to find a way of amending or extending the legal basis on which our activities proceed.
§ Lord DIPLOCK
My Lords, the Treaty does contain in itself an article providing provisions for amendment.
§ Baroness WHITE
I am delighted to hear that. I had supposed, obviously erroneously, from the remarks of the noble and learned Lord that this was not provided for. However, he has now reassured me that it is.
It seems to me that a legitimation is a more constructive and progressive attitude than suggesting that one should simply stand by provisions which were originally enunciated at a time—as the noble Lord, Lord O'Hagan, reminded us—when neither consumer protection nor environmental protection were matters of as keen public interest as they have since become. We are clearly in a difficulty here because of these two different approaches—the constitutional lawyers' approach and the approach of some of us who are not necessarily at all starry-eyed about the Community but who nevertheless feel that if we are in it at all, it should engage in matters which to some of us are of very great importance.
The more extreme view, perhaps, of the expanding nature of Community action has been expressed as recently as 15th June this year in a memorandum entitled Some Principles of Approximation of Laws, issued by the Directorate-General for internal market and industrial affairs in Brussels. Paragraph 11 of this memorandum adduces the proposition that:approximation of laws has to take into account in each case the interests of today's industrial society and must make its contribution to the improved quality of life which people rightly expect from the Community. Such orientation of the respective policies of approximation flows and can be derived from the economic, social and political goals of the Community".883 It goes on in paragraph 13 to propose thatthe concept of approximation of laws is not rigid but flexible by definition ".Paragraph 14 suggests:the Commission will proceed in an open-minded and pragmatic fashion. … Approximation of laws is not done at once and once for all, but it is a pragmatic, continuous, dynamic process in a constantly changing society ".Obviously such sentiments must keep the noble and learned Lord, Lord Fraser, and the noble and learned Lord, Lord Diplock, awake at night, but nevertheless there is something in them.
I should like to remind your Lordships that there is in Brussels an Economic Environmental Bureau, which is the co-ordinating body for the voluntary environmental societies and organisations within the different Member States of the Community, and in which the United Kingdom voluntary bodies with which I am associated play a lively part. It has prepared a most interesting statement, One Europe One Environment—A Manifesto, which it hopes will be presented in the various Member States to all those who are standing as candidates in the elections next year for the European Parliament.
The manifesto quotes the declaration of policy on the environment by the Heads of Governments made in 1972, which was further formulated in 1973, and to which reference has already been made. It proceeds to point out what has already been recognised; namely, that these environmental matters are not covered adequately—at any rate in the opinion of the European Environmental Bureau—in the existing Treaty. Several different points are covered in questions which it is suggested should be put by those interested in environmental wellbeing to candidates for the Parliament, but I propose to take only those which are relevant to our particular concern today. The second of the key questions for candidates reads:The powers of the European Parliament to reduce the environmental impact of human activities are severely constrained by Article 2 of the Treaty of Rome with its commitment to a 'continuous expansion' [that is a continuous economic expansion] and Article 1 of the Euratom Treaty which calls for a speedy establishment of nuclear industries'. The EEB has called for amendment of these treaties. Would you support such a move?If we are to express very properly our concern at the course on which we now 884 seem to be embarked, we should at least positively and constructively try to consider how we can remedy the situation by an alteration in the Treaty. I must admit that I have very serious apprehensions as to the way in which one can do this, and, quite frankly, I hope that any such amendment would be confined to a general statement, presumably in Article 2. I say this because I think that many Members of the Select Committee and the subcommittees may be aware that numerous legal pundits in various parts of the world have already begun to turn their minds to this problem. I have here a copy of a study published in three languages (but emanating from Germany, on the Competence of the European Communities for Environmental Policy. Looking at the various detailed amendments to the Treaty which are being proposed in this document, I should think that it would be at least another 50 years before we have any agreed alterations that would cover environmental matters.
It is difficult to conic to firm conclusions today on the validity of the conclusions put forward in the 22nd Report. However, I would find Conclusion (7), in particular, extremely difficult if it were to be followed without at least some intention to attempt to amend the Treaty at some future date. The conclusion states:Since the exercise by the Council of the powers given by Article 100 of the Treaty causes an irreversible removal of legislative power from the United Kingdom Parliament, it is essential that the limits of the Article 100 powers should be strictly defined and that the Government should undertake to keep within them".If I were a lawyer I suppose that I could swallow that without any trouble at all. However, as I am not, I find it difficult to be told that one must stay within the strait-jacket when one thinks that the strait-jacket ought to be expanded. I would hope that the legal Members of the Select Committee could help some of us who are in this difficulty by producing in due course a further report, as good in quality as the 22nd Report, suggesting ways in which we could meet this situation, not negatively, but positively.
§ Lord DIPLOCK
My Lords, before the noble Baroness sits down, I wish to suggest that the way to do it is to amend the Treaty. The difference is that the amendment of the Treaty would require ratifi 885 cation by Parliament, while at present this is being done by Government without the ratification of Parliament.
§ Baroness WHITE
My Lords, I entirely appreciate that the noble and learned Lord is right in what he says. All I am suggesting is that we should consider even more thoroughly the way which we should take.
§ 5.5 p.m.
§ Lord ALEXANDER of POTTERHILL
My Lords, when I read the Twenty-Second Report I found that I was suffering from a mild attack of schizophrenia, and listening to the debate has not helped me very much in resolving my problem. I find myself fully in agreement with the basic submission of the report that Article 100 is being misused. I believe that this is without a doubt. However, I am in some difficulty in then moving to the conclusion that the European Community has no function other than that which is strictly economic. I have a feeling that, if that strict interpretation is applied—with the greater growing power of China and, in the longer term, the United African Continent—the voice of Britain in the affairs of the world will be little more than a whisper. Thus, I have much sympathy with the view which the noble Baroness, Lady White, has expressed.
I come to the report merely because of Paragraph 10, which relates to proposals on home study courses—what we would call correspondence courses. This matter came before Sub-Committee C of the Select Committee, and we found it very difficult to see how it possibly came under the provisions of Article 100. We could not believe that correspondence courses would make such a dramatic impact upon the economy of Europe. Indeed, we had some difficulty in seeing a European element at all, due to the fact that there is very little trans-border activity because of language itself.
However, we also recognised that the purpose of the proposals was a good one. Indeed, I recall that 10 years ago in this country we recognised the same purpose, and we took steps to provide for it. We set up a council for the accreditation of colleges which dealt with correspondence courses in order to secure the establishment 886 of effective standards, and to safeguard the students involved. That council has operated for these 10 years with much success. Of the 500,000 students involved in correspondence courses, 95 per cent. are dealing with accredited colleges where their interests are secured and the standards are guaranteed.
Therefore we reached the conclusion that this was entirely inappropriate to be the subject of a Directive, but we thought that it was a perfectly valid matter to be the subject of a recommendation. This is where I found difficulty with the report. It dealt with this matter very crisply in two sentences:The Committee are, on the information before them, of the opinion that this proposal is ultra vires".I quite agree.They consider general as opposed to vocational education to be outside the scope of the Treaty …".If the Select Committee can distinguish between general and vocational education, I should learn something which I have failed to learn in the 40 years in which I have been engaged in the service of education. I think that that is neither practicable nor desirable. Let us deal with the practicability, first of all.
When the noble and learned Lord the Lord Chancellor studied law, I have no doubt that that was vocational, since it is his vocation. I am equally certain that, when I studied law to a very limited extent, it was general education. I have no doubt that most courses in carpentry and machine minding, machine operations, are vocational courses; but when my son was at Arundel and every pupil, including those in the classical sixth, was required to spend a week in the machine shops, I thought it was general education. When the thousands of young married men, drawn from all the professions—the law, medicine, teaching, banking—attend courses to learn how to paint and hang wallpaper so that they can decorate their homes without incurring the very high costs which would otherwise be involved, is that general education or is it vocational education?
Frankly, I think this is an impossible distinction. More important, I think it is a most undesirable distinction. Only a few weeks ago your Lordships had a debate on engineering. One thing that 887 emerged beyond doubt from that debate was that, because of this distinction between so-called vocational education and so-called general education, because of the esteem in which this country has held academic values and academic education as compared with technical education, we had suffered a very great deal—because there is little doubt that it is still true. Therefore, any distinction of this kind will merely tend to create a situation in which the forms of education most likely to produce wealth in this nation rank as second-rate when compared with those forms of education which consume rather than create the wealth of the nation, leading in most cases to the public service.
I have been engaged for most of my life in trying to find the right balance between the activities of central Government and those of local government in this country so far as the education service is concerned. I believe that what we are debating today is a precisely similar problem in the relationship between this country—indeed, between each of the countries in the Community—and the Community itself. I walk wholly with the noble and learned Lord, Lord Diplock, on the legal issue and on the constitutional issue, but surely there must be a means whereby the Community, while accepting that interpretation in terms of Directives, can make recommendations which each of the countries can carry into effect, so that the purposes which are sought can be very largely fulfilled. Certainly this would be true in the sphere with which I am concerned. I think there would be every possible advantage in much closer co-operation in the field of education throughout the European Community. I have no doubt about that at all. But I do not think it needs a Directive; I think it can be secured on a recommendation.
§ Baroness WHITE
My Lords, I apologise, but may I interrupt the noble Lord for just one moment? I think he will appreciate that in the field which he is discussing, education, a recommendation would probably be valid. It might be more difficult, possibly, in the environmental field, where you are dealing with scientific standards.
§ Lord ALEXANDER of POTTERHILL
My Lords, I think this is probably 888 true, and this is one of the problems: to determine those areas or activities where a Directive is necessary; where (as I would put it) unity requires uniformity, as distinct from the areas in which, in my judgment, unity could be achieved with diversity. This seems to me to be the essential difference; but I believe that unity and diversity can make just as great a contribution to the development of the concept of a European Community and its influence upon the world as unity and uniformity. Therefore, I very much hope that this House will not merely approve the narrow interpretation, though I accept that it must as a matter of law, but will rather indicate the Government's readiness, while acting legally on that basis and taking great safeguards to protect the constitutional position, to support recommendations which would lead to a strengthening of the European Community and its influence in the world.
§ 5.16 p.m.
§ The Earl of ONSLOW
My Lords, this debate, as has already been said, is of enormous importance, and for that we must certainly thank the noble and learned Lord, Lord Fraser of Tullybelton. To argue or dispute, as a layman, with Law Lords on the interpretation of treaties is not only foolhardy but a forlorn hope. Forlorn hopes have on rare occasions succeeded, and I would attempt to try. The Treaty of Rome—and we should and could all have read this before we joined the Community—begins (and I quote verbatim):His Majesty The King of the Belgians, The President of The Federal Republic of Germany, The President of The French Republic, The President of The Italian Republic, Her Royal Highness the Grand Duchess of Luxembourg, Her Majesty the Queen of the Netherlands,Determined to establish the foundations of an ever closer union among the European peoples,Resolved to ensure by common action the economic and social progress of their countries by eliminating the barriers which divide Europe, …".Those are the first ten lines of the Treaty of Rome. In my humble opinion, that is not the preamble to a zollverein, like that of Germany after 1815; it is not the preamble to a Customs union: it is the preamble to a treaty embodying something greater. To say, as does the noble and learned Lord, Lord Fraser, that the Treaty of Rome is an economic treaty only is contradicted, I suggest to your Lordships, in those opening ten lines.
889 Furthermore, my Lords, it must be impossible to separate economics from social progress, as it is totally impossible to separate economics from politics. Politics arc the affairs of a city or polis. The affairs of a city, using "city" in its earlier Greek sense and not its modern sense, are the provision of the wherewithal and the welfare for the people of that city to obtain a prosperous social and economic existence. Both are interchangeable, and both are indivisible. The other day I bought a new tractor. This has now had to have an expensive, sound-proofed safety cab on top of it. The cab is so quiet you can sleep in it, so it has a wireless. That tractor would be £2,000 cheaper if it did not have that cab. On account of its greater height, extra expense is involved in lopping trees. There is an EEC standard for tractor cabs, and that is why I had to have a new tractor cab. It is a very sensible attempt by the European Community, agreed by our own Government, to protect farm-workers from accidental damage and from social damage to their ears by the noise, and so on. That is a social law. If there had not been that, those who have to add £2,000 to the cost of their tractor would suffer an economic disadvantage to those who did not.
A further point, my Lords. The trade unions in this country have a long, honourable and very successful history of pressing for the advancement of safety measures for their members. At the moment it could be said, reasonably fairly, I think, that the trade union movement is lukewarm in its support for the European Community. If safety and social welfare were taken out of it, I suggest they would become vociferous opponents to it. I think the grinding machine Directive has been so excellently dealt with by the noble Baroness, Lady Robson, and there is such a great deal more business to deal with today that it would be silly of me to continue any further on that point.
Your Committee has produced its opinion which has stated concisely in paragraph 23 of the 35th Report. It suggests that this Directive has got its social and economic mixture unbalanced. To say, as do the noble and learned Lords, Lord Fraser and Lord Diplock, that the 890 Treaty is an economic one and not a social and political one, surely flies in the face of English legal history. They know better than I that Chancery Law was invented to by-pass and make fairer common law. Lord Justice Cooke who, incidentally, tied his daughter to a bedpost and beat her into marrying someone who would advance his career at court knew his law backwards; even though he thought that Parliament started in the reign of King Arthur. He used this encyclopaedic knowledge of the law to invent the triune doctrine of Parliament. Some of this was made up; but we have all benefited quite enormously through that. This has been called the English genius of constructive hyprocrisy. This has come into our dealings with the EEC. The political Parties have been playing down the first 10 lines of the Treaty of Rome because it has not accorded with what they think are the political principles or prejudices (call them what you will) of the voters of this country.
To call in doubt the social and political content of the Treaty of Rome is, in my view, to reopen the whole of the EEC argument. That I hesitate to do; that I am not qualified to do. I do, however, suggest that no treaty can stand still. I suggest that all treaties, and especially this one, will benefit by a liberal dose of the English genius for constructive hypocrisy. Perhaps the noble and learned Lord, Lord Denning, who seems to be an inventive judge—and I say that in admiration and not criticism—might come to a different conclusion from the noble and learned Lords, Lord Fraser and Lord Diplock. I hesitate perhaps even more to put words into the mouth of a judge than to argue with a judge. That is probably even more dangerous. This does not mean that we should lower our standards of scrutiny but, as the noble Lord, Lord Greenwood, said today, we should point out very hardly to the Commission when they commit foolish irrelevancies which, sometimes, they unfortunately do.
§ 5.22 p.m.
§ Baroness SEEAR
My Lords, the main contribution to this debate of Sub-Committee C, of which I have the honour to be chairman, is the report on machine tools and on grinding machines, on which, I am relieved to say, my noble friend 891 Lady Robson has so distinguishedly contributed this afternoon, relieving me of the duty of dealing with technical detail which I am incapable of understanding. Both the grinding machine issue and the other points so powerfully raised by the noble and learned Lords who have spoken raise matters of the very greatest seriousness. On the grinding machine issue, I would wish merely to re-emphasise one point which the noble Baroness has made. This was to urge the Government as strongly as I can to consider ways in which we can get a greater technical competence among those who are making these regulations. This is not a new issue to be discussed in this House. When debating Directives and proposed Directives from the EEC, we have on previous occasions raised the issue of the lack of scientific and technical knowledge which goes into the formulation of those Directives and, particularly, the technical anneexes of the directors.
May we ask the noble and learned Lord the Lord Chancellor who is to reply at the end of the debate to tell us whether there are any steps which can be taken so that what we do not yet again have to come to your Lordships asking that these highly important technical matters should not be left to such a large extent in the hands of lawyers—whose brilliance in their own field has been demonstrated this afternoon; but, with great respect, that is not a brilliance which qualifies them to deal with lawn mowers and grinding machines—if a way can be found, by taking practical action, to see that this does not go on.
§ Lord O'HAGAN
My Lords, if I may interrupt the noble Baroness, there is only one answer to this problem; and that is to reinforce the Commission. That is something that the Finance Ministers turn down year after year. Unless the Commission can be given powers to make itself better informed, it can never improve the quality of the Directives. Is that the matter on which the noble Baroness is addressing the noble and learned Lord the Lord Chancellor?
§ Baroness SEEAR
My Lords, I am asking the Lord Chancellor to reassure us that this time some action will he taken and that the Government will throw their weight behind getting a better level of 892 technical competence in the making of these Directives.
Leaving that aside, we in Sub-Committee C went a long way with a great many of the points so brilliantly put forward by the Law Lords. In particular, we would reinforce the criticism of the present use being made of Directives. I doubt whether the noble Lord, Lord Alexander of Potterhill, is entirely correct in saying that the trouble is that it should not have been a Directive that was being used in a number of these circumstances, but that it should have been a recommendation. There are a number of occasions on which that is the right distinction to make, because a recommendation, unlike a Directive, leaves it open for the Member States to decide whether or not they are going to follow the line of policy indicated. But, surely, one of the points, about which we have complained previously in debates arising out of documents from the EEC, is that Directives, as laid down in the Treaty, are not intended to go into great detail as to what should be done by the Member-States. Directives, unlike regulations, as I understand it, indicate where Member States are to arrive by a process which they themselves can determine, provided that they achieve the policy objective which is laid down.
This is a complaint which can be made again and again about the proposed Directives which have been coming before Sub-Committee C—and the case of the correspondence courses, the home study courses, was a good example. Whether or not we needed anything from the EEC on home study courses, we certainly did not need a Directive. We needed to be told that there are perhaps certain objectives to be reached. We already in this country in that regard had taken steps which met the policy objectives which the Directive was trying to establish; but in a way different from that proposed in the draft Directive from the EEC.
There is a second important point. It is not only whether we need to have a Directive but whether it is not the case—and I am sure it is in a number of the proposals coming before us that, in fact, Directives are going to into a degree of detail which is quite inappropriate and which is appropriate only to regulations and which make it far more difficult for a 893 Member State to be willing to consider conforming with the proposals that come before them. I would ask also that the misuse of Directives by making them far too detailed, instead of following the line of saying that a Directive is there when it has been decided that there is a common policy objective that the Nine should achieve; but that they are free to achieve it, travelling their own path and using their own methods, provided they arrive at the required end as the result of the steps they have taken.
Certainly that was the case in the home study Directive that came before us where it appeared to all the Members of Committee C that the steps we had already taken in advance of the proposals of the EEC met the requirements perfectly adequately. The same could be said of some of the Directives in the field of environment, which is not my subject, but I remember very well the noble Baroness, Lady White, pointing out that requirements were being laid down in Directives, the objective of which was to see that fish did not die. Our fish did not die anyway, because the waters were different. Surely all that mattered was that the fish did not die until we chose to kill them. That is the important issue. We do not have to save their lives in a way prescribed in the greatest possible detail by the Commissioners in Brussels, with or without expert knowledge of the way in which fish live and die.
It is the abuse of the Directive as well as the use of the Directive which is one of the problems that we are up against. Perhaps the fact that this abuse has taken place has served a useful purpose in that it has drawn our attention to the whole issue which we are discussing this afternoon. It has also roused the Law Lords to look with the greatest possible detail at the question of ultra vires. Looking—as lawyers obviously must—at the Treaty of Rome line by line, comma by comma, alarmed that the Commission is doing good by stealth or ill by stealth—according to one's point of view—and disapproving of anything being done by stealth, surely it is right that we should at least know what we are doing and do it with our eyes open, rather than being blindfolded by Directives the implications of which we do not totally appreciate when we sign on the dotted line.
894 As the noble and learned Lord, Lord Diplock, suggested, in the inevitable process of "horse trading" which goes on in Brussels, as in all other political centres, it is easy to give away far more than one is aware in the longer run in order to obtain an immediate advantage. In examining the vires of actions under the Treaty, is it not true that the Law Lords are attempting to limit the purposes of the Treaty very narrowly indeed to its economic objectives? The noble Earl, Lord Onslow, referred to the preamble to the Treaty. I should like to argue that we want to look very carefully at the possibilities of development of social policy inside the European Community.
Many of us would be extremely reluctant to err on the side of a very rigidly narrow economic interpretation of the Treaty. In wishing to extend the Treaty to broader areas of social policy, not covering the whole of British law as has been suggested by some speakers today, recognising that there are many areas of social policy of great importance which can best be handled if they are approached on a Community basis rather than on a national basis, we have been encouraged by a number of statements coming from high places. The noble and learned Lord, Lord Diplock, referred to statements which have been made by the Council of Ministers going so far back as 1972. I quote from a statement made in 1972:The heads of State or heads of Government emphasised that they attached as much importance to rigorous action in the social field as to the achievement of the economic and monetary union. They thought it essential to ensure the increasing involvement of labour and management in the economic and social decisions of the Community. They invited the institutions, after consulting labour and management, to draw up between then and 1st January 1974 a programme of action providing for concrete measures and the corresponding resources particularly in the framework of the social fund".In the preamble drawn up by the Commission for the social programme in 1973 it was said:…from now on both the whole approach and scale of social action must be changed".When the social action programme was launched in 1974 the Council asserted its belief that…economic expansion is not an end in itself but should result in an improvement of the quality of life…".That is a rather overworked phrase, as the noble and learned Lord, Lord Fraser of Tullybelton, commented— 895…as well as of the standard of living".So we go on. I can even quote in aid the lawyers themselves. In the European Court in the Defrenne case the judgment said, referring to Article 119:Secondly, this provision forms part of the social objectives of the Community, which is not merely an economic union, but is at the same time intended, by common action, to ensure social progress and seek the constant improvement of the living and the working conditions of their peoples, as is emphasised by the preamble to the Treaty".That presumably was the judges' comment and interpretation of the Treaty which they saw, in making that judgment, in a Community developing its social as well as economic purposes. It may well be that the noble Lords, Lord Fraser and Lord Diplock, will say that we have been misled by these statements that it is the result of leadership such as this through the Council of Ministers that we have proceeded along this dangerous path which they see as being ultra vires. Clearly, this matter has to be thought out very carefully indeed.
I wish to make only three more points. First—and this matter has already been raised—to draw the distinction between what is economic and what is social is in practice far more difficult than at first sight might seem to be the case. The noble Lord, Lord Alexander of Potterhill, has already illustrated this very powerfully in discussing what to me, as to him, is the entirely invalid distinction between education and training, vocational and non-vocational education. It was only yesterday in your Lordships' House that we discussed the issue of productivity. Surely that is an economic issue if ever there was one. But unless the highly social question of unemployment and provision for unemployment is taken into account, what hope in practice is there of any real raising of levels of productivity? The social issues involved in moving to a situation in which one can get the desired increase of productivity calls for social action. Social and economic matters are closely intertwined.
It is surely all too apparent to those of us who from the very beginnings of the Treaty of Rome have been strong supporters of this country's entry into Europe that there is no great ground swell of enthusiasm for the European idea in this country today. But if we want a 896 real response and support for the development of Europe, if we are to maintain support for it in this country, the action taken by the Commission and the Council must be seen to ordinary men and women to be relevant to them in their ordinary lives. This means that the social aspects of their life as well as the economic aspects must be taken into account. If it is not seen by ordinary people that the Community has something to say through their ordinary social needs, then the support that we need to keep alive and develop the idea of Europe will not be forthcoming. It is surely the idea of Europe about which we are talking.
Europe was a great political idea; some people have said that it was the greatest political idea of the 20th century. As we all know, it was born out of hideous travail. Nobody imagines that the founders of Europe thought that it was intended to be confined within the limits of the Treaty. It is an idea which must either grow or die: it is a political idea. Of course you have to have the Treaty to give it a legal base, but we must surely find a way—and we are immensely grateful to the noble and learned Lords, Lord Fraser and Lord Diplock, for having made it so clear to us this afternoon that we have not yet thought through adequately the way in which this problem should be solved—while abiding by the Treaty and not abusing it, to see that this great political idea can grow and express itself in new forms and in new ways.
§ 5.41 p.m.
§ The Earl of MANSFIELD
My Lords, the noble and learned Lord, Lord Fraser, and the Select Committee have rendered a valuable service by producing this report which considers the approximation of laws under Article 100 of the Treaty. The debate has provided your Lordships, or some of them who are perhaps less than enthusiastic about our membership of the European Community, with the opportunity to voice their fears. It has, at least to the noble and learned Lord, Lord Diplock, given an opportunity to voice fears about our decreasing sovereignty in the future.
The whole world of the Community seems to be somewhat unreal, and the lack of enthusiasm which was mentioned a few minutes ago by the noble Baroness, 897 Lady Seear—and I agree with her that there is a noticeable lack of enthusiasm in this country—arises from the extraordinary nature of the subject which we debate. Who would consider that two Law Lords and a whole host of other noble Lords with vast experience in many fields would embrace a debate which would encompass portable grinding machines the noise levels of lawn-mowers and doorstep selling. These, if I may say so, are postules on the body politic of Europe; but what we are considering goes a great deal deeper than that.
At grave risk to myself and to my reputation, I should like to come back to the report of the Committee and refer to some aspects of that, because so many of your Lordships have ranged much wider in the debate; that is indeed natural. The Committee has chosen to consider in this Report the whole field of approximation of laws under Article 100, and it is unusual in that it normally considers and reports on a much narrower field. It seems to me that the Committee expresses its dissatisfaction, so far as this form of Community legislation is concerned, on three main fronts.
First, it is said that the text of Article 100 should be construed strictly and that where it states in the latter part of the first paragraph that—the proposed provisions shall directly affect the establishment or functioning of the Common Market",the word "directly" must be given a narrow meaning. Furthermore, the dominant purpose must be economic, and other purposes, if included, must be clearly incidental to the economic purpose.
Secondly, it is said that the Commission, when preparing draft proposals, should do a great deal more research into the law of the various Member States, and where divergencies are capable of affecting the functioning of the Common Market the causation should be made plain. I do not suppose anybody would quarrel with that point of view. In passing, in a number of instances it is claimed that the Commission's drafting is bad and poorly thought out. I should like to return to that point a little later.
Thirdly, the Committee is concerned that by virtue of the Commission's 898 proposals under Article 100 some transfer of legislative sovereignty from the Member State to the Community takes place, and that this process is irreversible. It recommends in terms that the limits of powers under Article 100 should be strictly defined and that the Government should be asked to undertake to keep within them.
If I touch briefly on these three points, it is because—speaking purely for myself—I should not like it to be thought that there is no case at all against the findings of the Committee; because I believe there is one. I do not say that it is a strong case and, still less, that it is an overwhelming one; but there is a case and I believe that it ought to be put.
The first matter I should like to consider is the scope of Article 100. The Committee rightly points out that the Article needs to be read in the context of the Treaty, particularly having regard to Article 2, which I would define as the "purposes" article. Also, although the Committee appears perhaps less strong on this matter, they consider that it should be read in accordance with Article 3, which I would call the "activities" article of the Treaty.
I would say that there is at least an argument for saying that Article 100 is merely the machinery by which the purposes of the Community are carried out, and that the last part of the first paragraph of Article 100 indicates, generally speaking, the fields of approximation. It could be—I say this with great diffidence and respect to the Committee—that too much stress has been put on the word "directly". In any event, I would submit that approximation can be justified by looking at Articles 2 and 3 and perhaps, in particular, Article 3(f), which I would have thought that in certain circumstances could bring in the machinery provided for by Article 235.
This is technical stuff, and I apologise. As to the argument whether approximation should be confined, the Committee recommends cases where the purpose is dominantly economic or at any rate clearly incidental to some economic purpose. I should have thought that approximation would be justified, and would fulfil the last part of the first para- 899 graph of Article 100, if the object of the Directive is to prevent the distortion of competition.
I should like to pass to a rather different subject, about which quite a lot has been said this afternoon. That concerns the protection of the environment. As has been said, a Community environmental policy was adopted by the Council in, I think, November, 1973. Assuming that the policy exists, which it does, even if it is right that Article 100 is to be read in a narrow fashion by the interpretation given to the words "Common Market" at the end of the Article, I would have thought that provision for such social matters exists, or at any rate is inherent, in Article 235. If one substitutes the word "Community" for the words "Common Market" in paragraph 1 of Article 100, then I submit it would be right for approximation to take place under that Article.
The Committee's Report deals with a number of environmental proposals, some of which it criticises and at least two of which it considers to be ultra vires. I shall not go into the arguments which have already been rehearsed today, but I wonder whether it is fair to say in effect to the Committee that, for instance, when it criticises the Directive on Water Pollution it bases its criticism on the ground that the principle of variable limits within the United Kingdom is preferable to uniform limits of discharge. That may be good sense from the environmental point of view, but I wonder whether it is so sound from the point of view of establishing fairer competition. I bear in mind the noble and learned Lord's point about his tomato houses, but I am not sure that the two go exactly hand in hand.
Summing up this part of the argument, there is a fundamental difference of approach here. One is the, perhaps, narrower legalistic argument, between those who believe that the Treaty provides a framework of rules and that it is wrong to go beyond them—for instance, to use the framework as a basis on which to carry out an environmental policy—and, on the other hand, those who believe that the Community is a changing, evolving entity, and that Article 235, for instance, exists for just this kind of purposes. Several noble Lords have commented on this. A number of remarks have been 900 directed at the way in which the Commission sets about its work. That has come in for quite a lot of criticism from time to time, and not only from the legal point of view. In the past, industry found that the Commission tended to waste its resources on proposals for Directives for which there was no need, and that, in consequence, there has been inadequate consultation and poor quality draftsmanship. I do not suppose that anybody would quarrel with that analysis. The point was well made by the Committee. I believe that the CBI has, since 1976, with its sister organisations within the Community, made a number of representations, and I think I am right in saying that some worth while improvements are taking place. Some of the low priority projects have been dropped and more consultation now takes place.
Having said that, I do not believe that the situation is in any way satisfactory, as yet, but at least the Commission now understands the criticisms that are levelled at it. We should not forget that the Commission is, after all, a creature of the Community, and it is up to the Governments of the Member States to mould the Commission, in so far as it is within their power to do so, to produce proposals which make sense and commend themselves to the members.
I come now to the question of sovereignty, which is probably the most emotive part of the Committee's report. The accession of the United Kingdom to the Community has resulted in a loss of sovereignty, and that is beyond argument. But the Committee recommend that the limits of the powers under Article 100 should be strictly defined, and this recommendation follows on from the view that the Community cannot exercise any authority, except to the extent that authority has been conferred upon it.
Here we come to a problem which has been exercising your Lordships' House for some weeks, particularly over the Scotland Bill. How does one lay down the limits of power for a devolved authority, when the area in which it is expected to legislate is so wide and so constantly shifting, as life and commercial practices in the Community evolve? So that even if the limits of powers under Article 100 were capable of satisfactory definition— 901 and I do not believe that they are—it is difficult to see how the Commission, and indeed Government, could be kept within them.
One comes back to this, which is the central part of the whole argument. This is really a matter of what I might describe as mixed law and politics. The Committee is right to enjoin the Government and Parliament to be vigilant and, where appropriate, to take effective steps to stop erosion of our Parliamentary sovereignty, unless it is legal and proper that some sovereignty should be given up. But, as has been said by a number of noble Lords, the real protection lies in the Council of Ministers, and it lies within the power of the Government of the day to examine each proposal which is put before it, and to veto—as some Governments are not slow to do—anything which it considers improper, ultra vires or against the proper interests of this country.
That, I hope, is what the noble and learned Lord the Lord Chancellor will tell us this evening; that the Government are alive to their responsibilities in this field and to the fact that there is a certain concern—I will not say alarm—at the way in which some of these new proposals come from the Commission, and that the Government are thinking of ways in which we can be alerted, as we are, in good time, and that measures, where appropriate, can be taken.
§ 5.56 p.m.
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I am most grateful to the noble Earl, Lord Mansfield, for so admirably summarising the reply which I was proposing to make on behalf of Her Majesty's Government to this fascinating debate. We are most grateful to the noble and learned Lord, Lord Fraser, for having introduced it, and of course, above all, we owe a great debt of gratitude to the Select Committee of your Lordships' House for the excellent report which they have produced, which has not only been an admirable basis for this distinguished debate, but represents what I regard as a major contribution to our appreciation of what is going on in the law-making activities of the Community, and provides a most valuable 902 analysis of the trends of the proposals that are so far put forward.
The report is both critical and constructive. There is a great deal in its conclusions to which I readily subscribe, but I have my reservations about some of them. I certainly favour the suggestions which the Committee make on the preparation of the Commission's proposals. I welcome the suggestion in paragraph 22(2) of the report, that the Commission should, when preparing a draft proposal, demonstrate how and to what extent the differences between national laws are affecting the functioning of the Common Market. I, too, should like to see their proposals supported by evidence of the consultations they have undertaken and by some reference to existing national laws. I particularly endorse the suggestion that, where the proposals concern matters of major importance, papers similar to our own Green or White Papers should be published for discussion and comments, before draft proposals are submitted to the Council.
Whether a great deal of technical detail is desirable in a Directive—and the noble Baroness, Lady Seear, has questioned that—must to some extent depend upon the subject. But where it is desirable, it clearly must be set out with competence as to both the drafting and the technical basis of the proposal. It may well be that, in regard to the limitations of technical competence, the noble Lord, Lord O'Hagan, was right in pinpointing that it is largely a matter of funds. But I will certainly draw to the attention of my ministerial colleagues the suggestions that have been made in this field.
I certainly accept the suggestion in paragraph 22, that alternative means of obtaining the desired result should be examined before the method of a Directive is necessarily chosen. Indeed, there may well be on occasion a greater benefit by the use of a recommendation, and the noble Lord, Lord Alexander, gave a good illustration of that in relation to home study courses. Also, in regard to other matters it may be far better to achieve what is sought not in a Community instrument at all, but in an inter-State convention. But I assure the House that, on a number of occasions, our representatives in Brussels have urged an examination of the alternative methods 903 available to deal with what is proposed to be done.
My Lords, these are all matters concerned with the working methods of the Commission and the preparation and form of the Directives. When one comes to consider their content and the subject matters to which they should apply, I do not think it is possible to generalise quite so readily. Article 100, about which we have heard much today, has been used for a wide variety of purposes. The Directives issued so far fall into three main categories—eliminating technical barriers to trade, including the fiscal elements attached to trading like customs and taxation; then harmonising laws which safeguard public health, protect working conditions or preserve the amenities of the environment; and, lastly, approximating the conditions in which work or trade takes place and the consequences which flow from those activities.
The Government welcome wholeheartedly the removal of trade barriers—so, I venture to think, would most Members of your Lordships' House. The great majority of Directives in that area have been acknowledged to be of benefit to us. It was estimated by British industry in 1975 that about two-thirds of the Directives brought forward by that time had been or would be of direct advantage to them. There can be no question I think that Article 100 is the right means for bringing about the removal of technical barriers and that its use for that purpose is to be encouraged. But I think even in that area there needs to be caution. The programme should not become overloaded as the conclusions of the report suggest, nor should it concern itself with minor technical harmonisation. I agree again with much that was said by the noble Lord, Lord O'Hagan, about the need to avoid needless subjects for action.
Harmonisation may be costly, particularly in the short term while industry has to adapt its products to any new specifications. The long-term advantages may outweigh this, but the phasing has to be carefully considered and the process must not be hurried. There must be time for my colleagues responsible for trade or industry or energy to have full consultations with industry. I am informed that in fact those consultations, have been taking place in the past, but 904 certainly they are essential—in particular the right method of harmonisation needs to be closely examined.
I believe that the desire to concentrate on the quality rather than the quantity of Directives is shared by the Commission, and it may be significant to note that in 1974 they proposed 33 new Directives for the removal of technical barriers to trade, in 1975, 15, in 1976, 13, and last year only six. So there is not an excess of zeal continuing in this field.
I do not think I need say much about the Select Committee's 35th Report on the proposals for draft Directives concerning machine tools in general and portable grinding machines in particular, about which both noble Baronesses have spoken with such abundant clear authority—a field of female expertise I had not previously suspected to exist. As regards the proposed special Directive on portable grinding machines, the Government shares the Select Committee's concern about the technical standard prescribed by the Directive which is substantially inferior in safety to existing United Kingdom controls. However, negotiations are far from complete and we shall certainly seek to secure a more acceptable standard to be substituted for the standard at present found in the Directive which bears the technical name of EN68. I agree that the circumstances in which that standard came to be adopted by the European Committee for Standardisation (CEN) are, as the noble Baroness, Lady Robson of Kiddington, indicated, not satisfactory and certainly do not make EN68 a satisfactory measure for a Community Directive which will set a standard which must be accepted by all Member States.
The case for harmonising under Article 100 matters concerned with public health, working conditions or a wholesome environment—the second category of Directives I mentioned—is plainly not so clear-cut as is the case for eliminating barriers to trade. Where it is a question of ensuring appropriate standards of safety, health and hygiene, few I think would question that these must directly affect the operation of the Common Market. One cannot expect one Member State to allow the free importation of articles of food or drink or pharmaceutical products which fall below its own accepted standards of safety or health or hygiene, 905 but that does not mean that it is necessary to introduce uniformity into the things we eat and drink. There has been little enthusiasm in this country for "Eurobeer" or "Euro-bread", but whether those matters have been seriously put forward I do not really know.
It is the case that the United Kingdom has resisted, and will continue to resist, any suggestions of harmonisation which do not meet a genuine need for overcoming barriers to trade or discrepancies between the rules of Member States designed to safeguard public health or protect other important welfare interests of the Member States. But in arguing against such suggestions I venture to think that it will often be more productive to rely on their inadequate merit and dispute the need for the particular harmonisation, rather than to lean too heavily on a possible challenge on grounds of vires.
Another group of Directives related, like the food Directives, primarily to public health are those which have been much discussed and which form part of the programme for the protection of the environment. The Select Committee's report is very critical of the legal justification for using Article 100 for this purpose. I think it is the case that that Article has sometimes been given a somewhat strained interpretation to justify Directives dealing for instance with pollution of water, the sea or the atmosphere. It is in practice not infrequently cited as an empowering provision along with Article 235. That Article, as noble Lords will remember, authorises any measures…necesary to attain in the course of the operation of the Common Market one of the objectives of the Communitywhere the Treaty has not provided the necessary powers.
With respect, I doubt whether an analysis of the powers would serve much purpose in this context. It certainly is not an approach which finds any response among other Member States and probably—though of course I would not be sure—I do not think it would be heard with much sympathy by the European Court if a relevant Directive ever came to be challenged in that court on grounds of vires. The fact is that a programme for the protection of the environment was en 906 dorsed as an important part of Community policy by the Heads of State of the EEC at their Paris meeting in October 1972, and an environmental action programme was adopted by the Council in November 1973, by which time of course the United Kingdom was a Member. The noble Earl, Lord Mansfield, pointed that out. That was renewed in a Resolution of the Council and of representatives of the Governments of Member States in May of last year, and it is now generally accepted, as the Resolution states, that…improvement in the quality of life and the protection of the natural environmentare among the fundamental tasks of the Community.
It is, I think, the case that the Community is not a static organisation. It has a certain dynamism of its own, and I doubt whether it needs "constructive hypocrisy"—to use the notable phrase of the noble Lord who spoke—to justify that. Its objectives are capable of development in accordance with the policies desired by the Member States. There are those who argue—and from a strictly constitutional point of view this would no doubt be the model solution—that the Treaty should be amended so as expressly to embody the protection of the environment. Indeed, I think my noble friend Lady White was thinking on those lines. There has been pressure for such an amendment, but I understand that there is no intention at present of seeking to make one. But I believe that even as it stands Article 100 is clearly relevant to certain environmental Directives like those relating to the lead content of petrol or to the noise levels emitted by different types of vehicles.
In such cases environmental objectives can easily be obtained through our harmonisation of product standards. In many others Article 235 can properly be invoked. Where the particular harmonisation itself is open to serious objection—and I agree with the Select Committee that there have been quite a few cases—we would wish to resist the proposal on substantive grounds rather than by making vires the main ground of objection. The difficulty about the vires approach is that the objectives stated in the Treaty of Rome are very wide indeed. I would certainly not accept that the EEC can operate under Article 100 or Article 235 907 in fields outside the stated objectives of the Treaties. But when we look at those objectives, and, for instance, at Articles 2 and 3—I will not read them out in view of the lateness of the hour—it will be seen that they are capable of very wide interpretation or a narrow interpretation, depending upon how sympathetic one is to the objectives that are sought.
Furthermore, greater emphasis might be given to any particular objective or to some aspects by the expressed consensus of the Member States and their representatives, for instance, as a result of summit resolutions. I would certainly not share the Commission's view—if this indeed is the Commission's view—that any branch of the law is potentially a subject for approximation. But this is a field where I think the indications of the problems that arise, pointed to by the noble Earl, Lord Mansfield, are real.
I come briefly to another area where concern has been expressed about the harmonisation of Community law; namely, the miscellaneous Directives which are aimed at approximating the conditions in which work or trade takes place and the consequences which flow from those activities. Criticism has been expressed at the impact which inflexible Community Directives of this type can have on the development of our own civil law. The report cites as an example the draft Directives on liability for defective products, on doorstep selling, on commercial agents and home study courses, and I think there is real ground for concern in this direction. I share the concern that was pointed to in regard to draft Directives like that on unfair and misleading advertising which the noble Lord, Lord Tranmire, dealt with so effectively.
All these proposals have already received a critical examination in reports of the Select Committee and debates both in this House and in another place, and I assure the House that the Government share the Committee's concern that piecemeal changes in small areas of our general civil law on contract or the sale of goods, agency or civil liability for wrong, and similar areas of long established general rules, can do a great deal of damage.
The Law Commission has warned of the distortion of the common law of agency and of other areas of commercial 908 law which may result from some of these Directives. Another area in which any projects of approximation should be viewed with the greatest caution is of course the criminal law. Our own criminal law and procedures have developed in their particular ways over the centuries, often differently from that of other Members of the Community, and any incursion on our criminal law in some limited area for the purposes of harmonising it with the laws of other States could well produce anomalies and distortions. If, for the sake of greater uniformity, it is necessary to have criminal sanctions for breaches of some uniform law, it is generally better to leave it to each Member State through its own legislation to apply its own sanctions and its own method of imposing them.
Time is going on and there are many other serious matters for debate this evening. Although I agree with so many of the reservations that have been expressed by the Select Committee about the use of approximation Directives, especially in relation to matters appertaining to our general civil law, I repeat my own hesitation in subscribing totally to the weight which the Committee puts on arguments on vires. As I have said, these matters of strictness of interpretation give rise to different views within the Community itself.
There is, of course, room for further negotiation in which elements of a Directive which seem to be ultra vires can be altered or deleted, or the basis of the instrument can be deflected from Article 100 to Article 235. Where we think that approximation is inappropriate we have in the past resisted it and, as has been pointed out by the noble and learned Lord, Lord Diplock, in the last resort there is the important safeguard of a requirement of unanimity for all relevant Directives, whether under Article 100 or under Article 235. This does not mean that, if at any time the Government were convinced that it is not within the power of the Council to make a particular Directive, we would nevertheless acquiese in such an instrument.
In this connection I must repudiate the suggestion that is made in paragraph 15 of the report, that the issue of Directives under Article 100 might deliberately be used as an easy alternative to securing 909 corresponding legislation by the normal Parliamentary procedures. At no time has such a consideration entered into the Government's attitude to any Article 100 proposal. Equally, there is no justification for the suggestion also made in that paragraph that the Government might be willing to agree to something it considered ultra vires simply in return for a concession on another matter. It is of course the case that the process of negotiation in the Community involves a certain amount of bargaining, but I do not think that includes a deliberate adoption of invalid instruments.
I end by underlining the value of the report and of this debate, and I shall draw the attention of my colleagues who have to deal with these matters in Brussels to the important points that have been made. We shall certainly see that full account is taken of the warnings that have been sounded in the House today. Certainly we do not want to see happening what has been described by the noble and learned Lork, Lord Diplock, as "creeping irreversible surrender of our sovereignty". That is something about which we have been alerted and about which we have been most watchful. This debate will strengthen the resolve of the Government not to allow such an improper transfer of legislative powers to take place, which might do damage to both the substance and the coherence of our own law.
§ 6.20 p.m.
§ Lord FRASER of TULLYBELTON
My Lords, I believe this debate has been a useful and interesting one and, I hope, possibly helpful to the Government. I must say, with the greatest respect, that I cannot regard the reply of the noble and learned Lord on the Woolsack as entirely satisfactory, although there were certain crumbs of comfort I was glad to pick up.
I do not propose to make any sort of elaborate reply. One of the troubles of speaking at the beginning of a debate like this is that one finds that later speakers say what one had meant to say oneself and say it much better; I have been suffering from that all afternoon. Several speakers really agreed in substance with what I tried to say. It would be a waste of time for me to go over and reiterate what they have said. I believe I may have failed to make 910 myself quite clear, and I noticed that particularly in what the noble Lord, Lord O'Hagan, said. If I gave any impression that I thought the Commission were wrong to consult outside interests, I certainly did not mean to; the more consultation that goes on the better. What I did suggest was that they do not always consult the right people. I think they are a little inclined to go to academic people and lawyers, when they really ought to go to engineers or people who know about the particular problem.
The noble Baroness, Lady White, referred to the fact that some diminution of sovereignty was implied when we entered the Community, and of course I fully accept that that must be so; otherwise there would be no point in going into it. What I do find difficult is that having entered a Community which involved certain, as one would have thought, fairly well-defined limitations on our sovereignty, we should find those limits forever expanding. If I could be satisfied that we knew where the limits were, then I would not have so much anxiety, and I do not believe my noble and learned friend Lord Diplock would either. What we find a little alarming is that it seems to be impossible ever to find where the limits are. If you regard the Community as a growing thing, something to be treated and construed in a pragmatic and dynamic way, it is difficult to know where you do draw the line. Unless you can draw the line in some way, then we shall be in the position of having lost the whole of our sovereignty.
The Treaty is, of course, quite capable of being amended by agreement of all the parties. Article 236 actually provides for amendment by a suitable machinery involving agreement of all countries and involving ratification of the agreement. That in the case of the United Kingdom would involve ratification by Parliament, and the result would he that the definition would be published and approved by Parliament and not merely done ad hoc by the Government in particular cases.
The noble Earl, Lord Onslow, referred to the fact that the preamble to the Treaty is wider than a merely economic one. That is true in a way but, after all, the title of the Treaty is the European Economic Community. He referred to the fact that it holds up social progress 911 as one of the purposes of the Community. That is quite true, but I think "social" is used in the Treaty in a rather narrow sense. If he looks at Article 118 he will see that the social field is said to refer particularly to employment, labour law, social security and things of that sort. They are social, in a way, but they are very nearly economic, too. So it does not really allow a very wide range of social legislation, I would have thought.
The noble Earl, Lord Mansfield, raised a really fundamental issue on the construction of Article 100. It would not be useful to me or tolerable to your Lordships if I were to enter into an elaborate argument about that now. I noted carefully what he said. I do not entirely agree, but this is a fundamental issue on which we have each put the argument on opposite sides, and I do not think it would be useful to go over it again now.
Finally, if I may refer again to the noble and learned Lord the Lord Chancellor, I noted with pleasure that he accepted several of the conclusions of the report, and I am sure the noble Baroness, Lady Robson, will be glad to note that he accepted the view of the Committee on the grinding machines. I understood what the noble and learned Lord said that it is better to rely on criticising the merits of proposed Directives than to fight them on vires. I can quite see that; if there are good grounds for criticising it on merits it may be easier and better to go for that. All the same, I would repeat that it seems to me important to keep an open eye for proposals which go ultra vires; otherwise if we always allow them to go through it will become impossible to criticise them.
I did welcome particularly his reference to the criminal law as being a field of law which is unsuitable for approximation in Community arrangements. I am particularly glad to hear that, because I have seen a book written by one of the Community lawyers in which he says that approximation is necessary and appropriate in all fields, including criminal law. I have read that with some alarm. I am sorry I do not have the reference immediately available, but that has been said by a responsible person on this matter. My Lords, I beg leave to withdraw the Motion for Papers.
§ Motion for Papers, by leave, withdrawn.