HL Deb 19 May 1978 vol 392 cc659-70

1.50 p.m.

The MINISTER of STATE, FOREIGN and COMMONWEALTH OFFICE (Lord Goronwy-Roberts) rose to move, That the draft European Communities (Definition of Treaties) (No. 4) Order 1978, laid before the House on 11th May, be approved. The noble Lord said: My Lords, I beg to move the Motion standing in my name on the Order Paper. The Schedule to the order contains the Act concerning the Election of Representatives of the European Assembly by direct universal suffrage, taken with the Decision of the Council of the European Communities of 20th September 1976 to which it is annexed. The text of the Act and Decision, in the form of Cmnd. 6623, was laid before Parliament in October 1976.

If the House approves the order, the Act and the Decision to which it is annexed will become formally defined as a Community Treaty under Section 1 of the European Communities Act. The European Communities Act gives effect to all the rights, powers, liabilities, obligations and restrictions embodied within a Community Treaty. But only Community Treaties formally defined as such, under Section 1(3) of the Act, have direct effect in the United Kingdom. Without the approval of both Houses of Parliament to the Act and Decision listed in the Schedule to the order, they would create rights and obligations at the international level, but could not, for instance, be invoked by individuals before the courts of this country.

The Act has the character of an international agreement. Article 16 of the Act requires that it enter into force only after notification by Member States of the completion of their respective constitutional requirements for adoption of its provisions. In Britain, constitutional practice has required that we first enact the European Assembly Elections Bill, which received the Royal Assent on 5th May, and also secure Parliament's approval to the specification of the Act and the Council Decision of 20th September 1976 to which it is annexed, as a Community Treaty, before we proceed to ratification. This approval we now seek.

With your Lordships' permission, I will describe briefly the contents of the Act and the Decision of 20th September 1976. The Decision consists of a preamble citing the articles of the Community's constituent treaties giving authority for direct elections, and reiterating the target date of May-June 1978 for direct elections, which was set by the European Council in Rome on 1st and 2nd December 1975, followed by short provisions concerning the publication, adoption and entry into force of the Decision and its accompanying provisions.

The annexed Act contains in Articles 1 to 4 the most important provisions agreed between Member States concerning the elections and related matters; that is, the framework within which the national provisions adopted by Member States are to operate. These provisions require elections by direct universal suffrage; they set out the number of representatives from each Member State; they prescribe a five-year term for the Assembly; and they make clear that the representatives vote on an individual basis. Article 5 provides for the possibility of a dual mandate. Articles 6 to 13 provide for disqualification, procedural and supplementary matters. Article 14 lists those articles in the constituent treaties which are to lapse with the coming into force of the Agreement. There are also three brief Annexes which form an integral part of the Act, and a declaration by the Federal German Government concerning the application of the Act to Berlin.

There have been few political issues so extensively debated in recent years as direct elections to the European Assembly. The commitment to eventual direct elections to the European Assembly "on the basis of direct universal suffrage" is embodied in Article 138(3) of the Treaty of Rome to which we subscribed on our accession to the Community. There had been several attempts prior to our accession to work out a generally accepted system of direct elections, but they had all foundered on the difficulties of devising a uniform system of election acceptable to each Member State.

At the December 1974 meeting of Community Heads of Government in Paris, it was agreed that a new effort should be made to achieve direct elections "as soon as possible", and, recognising the difficulty of reaching agreement on a single electoral system for the whole Community, it was subsequently accepted by both the Assembly and the Council that it would initially be necessary to allow the choice of the electoral system for the first round of direct elections to each Member State. Article 7 of the Act annexed to the Council Decision of 20th September 1976, however, requires the directly elected European Assembly to draw up a proposal for a uniform electoral procedure, so the search for a uniform system has not been abandoned. It has only been postponed.

The Government participated fully in the negotiations leading up to the signature of the Act annexed to the Council Decision of 20th September 1976 on direct elections, and during this time had frequent occasion to consult and take into account the views of both Houses of Parliament on the significant constitutional issues involved. In February 1976 a Green Paper on Direct Elections was published. This was followed by debates in both Houses, and the setting up of a Select Committee in another place, which produced three reports, together with published evidence, which were also debated. Following signature of the Council Act in September 1976 the Government published, in April 1977, a White Paper which was the subject of Parliamentary debate.

The House will recall that the first version of the European Assembly Elections Bill was published on 24th June, 1977 and was given Second Reading in another place on 3rd July by 394 to 147 votes. The Bill was reintroduced into Parliament in a slightly amended form on 9th November, and was finally approved in another place on 16th February by 159 votes to 45. Your Lordships gave the European Assembly Elections Act a fair passage through this House, and following approval of the Bill at Third Reading on 4th May, in a form unamended from that in which it had left another place, it received the Royal Assent on the following day, 5th May. It now only remains, as I stated earlier, for Parliament to agree to the specification of the Act of the Council and the Decision of 20th September 1976 annexed to it as a Community Treaty, before we proceed to ratification.

The position as regards ratification of the Council Act is that all Member States have now done so except France and Britain. France has completed all the necessary Parliamentary procedures, and is in a position to ratify at any time. The Council Act comes into effect only after completion of ratification by all Member States. Until the Act is in effect, there can be no legal decision by the Community regarding the date of direct elections. Article 10 of the Act requires that the decision should be taken by the Council of Ministers acting unanimously after consulting the Assembly. The decision of the European Council meeting in Copenhagen on 7th and 8th April in favour of the dates 7th to 10th June 1979 was a political decision, and it needs to be confirmed by the Council of Ministers acting in accord with the Article 10 procedure before it has legal effect. Moreover, Article 13 of the Act, which requires unanimous decision by the Council on the basis of a proposal from the Assembly after consulting the Commission, provides the legal basis for the determination of emoluments of directly elected members. The Government believe that emoluments must be decided before direct elections are held.

Early ratification of the Council Act of 20th September 1976, which approval of draft European Communities (Definition of Treaties) No. 4 Order 1978 by both Houses will enable the Government to do, will permit all necessary steps of implementation, such as determination of emoluments, to be taken at Community level in ample time before the date of direct elections next year. I am sure that after the extensive public debate there has been on direct elections in this country, your Lordships will welcome the earliest possible ratification of the Council Act by the United Kingdom which will demonstrate to our Community partners our firm commitment to holding direct elections on the dates of 7th to 10th June next year. My Lords, I beg to move.

Moved, That the draft European Communities (Definition of Treaties) No. 4) Order 1978, laid before the House on 11th May be approved.—(Lord Goronwy-Roberts.)

2.1 p.m.


My Lords, your Lordships, particularly the right reverend Prelate, would not welcome another long and impassioned speech from me on the subject of direct elections and, indeed, it would be quite inappropriate to the order that we are now discussing, which we have just heard explained to us by the noble Lord, Lord Goronwy-Roberts. The order, which is the subject of today's debate, is simply one more stage in the complicated legal and constitutional series of procedures which lead up to direct elections. There is really little point in your Lordships examining in detail most of the provisions of this older or the explanatory memorandum that the Foreign and Commonwealth Office provided for the Joint Committee on Statutory Instruments or, indeed, the decision of the Council published as Command 6623.

This is a piece of machinery to implement what has already been decided politically. But it is a complex and difficult procedure to set up elections in this country for an assembly elsewhere and the provisions of the European Communities Act make me want to ask just one or two questions. Looking at the explanatory memorandum that the Foreign and Commonwealth Office provided on 11th May this year, I notice that on the penultimate page, in paragraph 10(c), there was a comment about the direct applicability of community law. I think this is a subject that it is worth spending just a second or two in examining, because the applicability directly of community law is a subject which has a relevance far wider than the order that we are looking at today.

I note that in this memorandum the Foreign and Commonwealth Office say that the extent to which Community treaties are directly applicable as law in the Member States is a matter to be determined by the courts and ultimately by the European Court of Justice. And later on they say that it is thought that, although no undertaking can be given as to the completeness or accuracy of the list, the following articles of the annexed Act contain, or may contain, directly applicable provisions, and then a list is given. I am sure there are very good reasons why the legal advisers to the Foreign and Commonwealth Office have not been able to be more certain than this provisional indication leads us to believe. But could the noble Lord, Lord Goronwy-Roberts, say whether it is really so uncertain, it is really so unclear, because we have been studying this subject for long enough, I think, to be able to be a little more confident in at least guessing what was not directly applicable and what was.

The other question I should like to put is connected with the decision taken in Brussels on 20th September 1976. As I understand it, this order has the decision to which I am referring annexed to it, so that the decision is, in some way, associated with, or part and parcel of, the order. This question may he more pedantic, but at the time in which this decision was drafted the date for direct elections was still considered to be likely to be May/June 1978, and that is the date which appears in the decision. That decision is itself attached to the order which we are now asked to approve.

My second and final question to the noble Lord, Lord Goronwy-Roberts, is this: Why have we got the wrong date in the document being attached to an order? If it does not matter, why do we need to have it there? If we have got to have it there, should we not have the right date? There may be an explanation that he has already given which I did not follow, but it would be helpful to know why this decision which is now outdated is still to be annexed to the order that we are discussing. Once again, I say "God speed" to the process of direct elections. This order is part of the constitutional provision laid down by the European Communities Act. I hope we can give it a speedy send-off from this House and help the process of direct elections to happen soon.

2.7 p.m.


My Lords, one of the less agreeable consequences of being one of those whom your Lordships' House has selected to send to the European Assembly is that it is almost always impossible for any of us to attend those debates in your Lordships' House at which EEC matters are dealt with. This may perhaps on some future occasion be a matter which can be dealt with by the usual channels. I shall listen with interest to the reply that my noble friend will give to the noble Lord, Lord O'Hagan, on these various constitutional questions that he has raised. The noble Lord, as is well known in the House, has devoted a very large amount of his time to European matters, and the House will be grateful for the meticulous attention which he has devoted to these important constitutional matters.

I rise merely to say this: Over the past two or three years it has been very fashionable in this House and in another place, and it has been, to some extent, echoed on the Continent of Europe, to say that somehow the United Kingdom has been lagging behind all the other EEC countries in its support for the Community and, in particular, in regard to the holding of direct elections. This manifestly has not, in fact, been so. The constitutional provisions in the United Kingdom tend to be rather more complex than those of other Member States, in which democracy, compared with our own, is in many instances of comparatively short-term standing. It is quite right, therefore, that the United Kingdom Parliament, as represented by this House and the other place, should devote very considerable attention to these matters before taking the very grave steps of far-reaching consequence to the people of the United Kingdom, before they proceed to ratification of these matters.

I observed when my noble friend was speaking that he mentioned that France had still to ratify the treaty, but he omitted Italy. It is my understanding, although I may be imperfectly informed, that there are still some constitutional obstacles in Italy which have so far inhibited it from ratifying the treaty. If I am wrong, I shall he happy to be corrected by my noble friend. But I hope that the time has now arrived when the story that the United Kingdom is somehow lagging behind the rest of its eight colleagues in support of the European Community may be killed. In point of fact, as I have found over the nearly three years' experience I have had with the European Community, when it has come to legal action or giving legal force to Community decisions, it has been precisely the United Kingdom that has been almost always ahead of the rest.

I hope that people who criticise our Ministers on the Council of Ministers in Europe, and sometimes when they criticise their delegates, will remember this; that is, that we are regarded in Europe now as being an active and constructive force for the promotion of the European ideals as defined by the Prime Minister in another place about a year and a half ago, that the representatives of the United Kingdom of all Parties are zealous in their duties, that we are not behind the rest. Indeed, in Community committees in the Assembly plenaries the attendance record of the United Kingdom delegates is a very significant percentage higher than that of any other nationality in the Community. We have acquired—not I particularly, but all my colleagues—a reputation for being the hardest workers in the Community institutions.

I shall not detain the House further. I merely use this occasion, which shows once again the orderly and typically British constitutional progress that we are making, to say that we should no longer be told either by the British Press or the British media generally that we are somehow lagging behind or dragging our feet in Europe. There are times when British Ministers find it necessary to stand up for what they consider to be legitimate British interests. I can assure your Lordships that the representatives of other nations are not backward in fighting for the interests of their own countries. It should therefore not be a matter of reproach that when one of our own Ministers—and I have in mind particularly Mr. John Silkin—stands up for the legitimate rights of this country without impinging in any way on the European ideals or on our policy of co-operation in Europe, he should receive our whole—hearted support. I can assure your Lordships that it is common practice for the representatives of Germany, of France, of Italy and of the other Member States to sustain what seems to them to be their own national interests within the overall concept of the Community. It is not right that we should be behind in this respect or that we should be reproached. Subject to what I have said, I support the order before the House.


My Lords, while I thank the noble Lord, Lord Goronwy-Roberts, for his very clear explanation of this Instrument, may I quicky ask a question of my noble friend Lord O'Hagan? I understand that he quoted from the explanatory memorandum of the European Communities Elections Act and implied that the terms were very vague. As I understand that they have no legal force whatsoever, does it really matter Whether they are very specific or very vague?

2.15 p.m.


My Lords, may I say how grateful I am for the general welcome for this order which came first from the noble Lord, Lord O'Hagan. This was followed by a most interesting speech of great impact by my noble friend Lord Bruce. The noble Lord, Lord O'Hagan, raised two points, first as to direct applicability and the uncertainty, as he called it, of the definition of "direct applicability" which we have been able to put forward in the explanatory memorandum. I shall put it like this. What is said in the explanatory memorandum under this head seems to me to offer a high degree of certainty. A clear list of articles which could reasonably be expected to come under this heading is given there, so the degree of certainty is pretty high, but naturally there the caveat is set; literally no one can be absolutely certain about the full extent of applicability until matters are tested in the courts and ultimately possibly in the European Court.

I have thought about this in looking at successive orders of this kind, and I recognise the point that the noble Lord is making. I would suggest to him that this is the fair and perhaps safe way of putting it. The evidence of applicability is there. The pretension to final comprehensiveness necessarily is not there. The noble Lord also raised the question of the date which is included in the print—I put it no higher—of the decision. This reference was to the objectives set out when the decision was taken. It is in the preamble, not the operative part of the decision.

Consider afresh that Articles 9 and 10 of the Act lay down the procedure. I quote from Article 10, sub-article 1: The Council acting unanimously after consolting the Assembly shall determine the period referred to in Article 9, sub-article 1, for the First Elections". Therefore, regardless of the incidence of a printed date in the preamble, as I would call it, the clear basis for action is laid down in Article 9, sub-article 1 and in Article 10, particularly sub-article 1.

I agree that the noble Lord did not make a big point of this, but it was right that he should raise it. We should watch the phrasing and the printing of these Instruments, whatever their status, whether preambular or operative, as they come before either House. My noble friend Lord Bruce of Donington made a valuable contribution. We know him as one who has served, and is serving, with distinction and prominence in the Assembly. He referred to the fact that possibly there were other Members who had not ratified, and asked whether Italy had in fact ratified. He is quite right. Italy has ratified. What Italy has not done is to enact its electoral law. The Italian constitutional procedures differ from our own. They can ratify in advance of the passage of electoral legislation. So when I said that the only two Members of the Community who had not yet ratified were France and Britain, I was also correct. Indeed, so was my noble friend when, by implication, he wondered whether the full procedures which we would normally attach to ratification had been adopted by Italy. It is a case not without precedent in my relations, personal and political, with my noble friend when we have both been right.

The noble Lord made the point which needs to be made—and I was very glad he made it—that we have not lagged behind. We have genuinely and energetically gone about this business with expedition. This country does not lightly undertake obligations of an international character. When it does, when it finally decides to accept them, it works hard and makes a good job of it. I believe a very good job is now being made in the delineation of boundaries which should, any minute now, be published as a first set of recommendations, leading up to adoption by Parliament, perhaps in the autumn, and leaving the political Parties in our free democracy six or seven months to run up to the elections to be held between 7th and 10th June; so good progress has been made.

It is true that the first date, the target date, the objective, could not be reached. We were not entirely alone in the difficulties we encountered. As I have said before at this Box, the difficulties were not of our making. There were other circumstances bound up with our tradition, our practice, and for that I think we may take a little time.

I welcome what he said, and indeed what he has said more generally about the acceptance, the enthusiastic acceptance of our membership of the Community, our intention to make our contribution to improve and strengthen the Community, but like every Member of the Community, to assert our reasonable national interests. It has always been said that we can more effectively do that once we are inside the Community. We have taken that to heart, and I would suggest it ill behoves anybody to complain when any Minister from the British Government does precisely what the most enthusiastic protagonists of accession said should be done, and could be done so much better once we were inside. This is precisely what our Minister of Agriculture has been doing and what no doubt other Ministers in the future, not only from Britain, will be doing.

To the noble Lord, Lord Morris, may I say that I am very grateful for his interjection. I see no reason to dissent from what he said. Certainly this will be part of our thinking in the future, as in the past. With those remarks I no longer wish to stand between the noble Lord, Lord O'Hagan, and the right reverend Prelate, an interesting but somewhat hazardous situation to be in. So, once more, I beg to move.

On Question, Motion agreed to.