§ 6.8 p.m.
§ Lord Templeman rose to move, That this House takes note of the report of the European Communities Committee on External Competence of the European Communities (16th Report, 1984–85, H,L. 236).
§ The noble and learned Lord said: My Lords, the 16th Report of the Select Committee on External Competence of the European Communities, which the House is now asked to note, is concerned with the powers of the Community to conclude agreements with countries that do not form part of the Community. It is concerned also with the effect of such agreements on the United Kingdom, its law and its citizens. Your Lordships will have seen from the report that the general conclusions of the committee are that the powers of the Commission are very wide and that the effects of the exercise of those powers can be very far-reaching.
I should say at once that the committee find nothing disturbing in those conclusions. As your Lordships will see from paragraph 27 on page 12 of the report, the committee note that in practice any difficulties have been ironed out without trouble and that the exercise of extra powers by the Community into areas not covered by specific powers requires the consent of the council acting unanimously and therefore requires the agreement of each and every member state. I quote the last sentence of paragraph 27:
The purpose of this report is not to express disapproval of the extent of the powers [of the Community] or to urge the application of stricter legal limits to their exercise; rather it is to draw attention to the far-reaching consequences of the exercises of the powers and to highlight the considerations which need to be borne in mind when agreeing to that exercise".
§ In brief, the report contains no criticisms of the Treaty of Rome, the Commission, or the European Court of Justice. The noble Baroness, Lady Young, will be encouraged to note, and the noble Lord, Lord Cledwyn of Penhros, may be discouraged to note, that it contains no criticism of ministers, of any department, or of any practice among those departments. I hope that the report will not be thought to be dull in consequence.
§ In English law the power of concluding a treaty with a foreign country has always been vested in the Crown—now, of course, advised by the Cabinet. But if a provision of that treaty can be brought into effect only by altering the laws of the United Kingdom then, of course, that treaty provision will be ineffective unless and until Parliament has pronounced on an alteration of the law. To take a very ancient example, when Mary Tudor married Philip II of Spain she was able, as a Queen, to enter into a treaty of friendship with Spain; but she was unable to effect a restoration of property of the Catholic Church unless and until Parliament had repealed the provisions of Henry VIII whereby that property had been confiscated.
§ In more recent times the United Kingdom Government have been able to enter, and have entered, into treaties with foreign countries for the abolition of tariffs and the removal of obstacles to trade. But effect could only be given to most of those provisions by an enactment by Parliament or under powers bestowed by Parliament which enabled customs duties and other imposts to be reduced.
§ In English law the power of the Crown to enter into treaties and the supremacy of Parliament over the law are harmonised in a typical compromise way. If a treaty entered into by Her Majesty's Government requires United Kingdom legislation for its implementation then the treaty is not ratified by the Government until the necessary legislation has been passed. Even when legislation is not necessary, the treaty is laid before Parliament 21 days before it is ratified in order that Parliament may express its views and possibly enforce its views. That is the result of what is known as the Ponsonby Rules—so-called because they were enacted or brought into effect, or promised, by, I think, the grandfather of the noble Lord, Lord Ponsonby of Shulbrede. They are the rules which govern the respective powers of the Crown and Parliament with regard to treaties with foreign countries. This aspect of the matter your Lordships will find on page 25, paragraph 69, of the report.
However, once we joined the European Community the power to enter into agreements with foreign countries which affect the trade and other matters which fall within the ambit of the Treaty of Rome passed to the Community and away from the United Kingdom Government and Parliament. This arises partly from the express terms of the Treaty of Rome and partly from a decision of the European Court of Justice. Article 210 of the treaty states:
The Community shall have legal personality.
The European Court of Justice has decided that this provision means that in its external relations the Community enjoys the capacity to enter into international commitments; in other words, the Community can do as much as a member state
government could have done before the Treaty of Rome came into force.
The committee has set out in Appendix 5 what I hope is a convenient summary of the relevant authorities on this: relevant, I hope, and understandable. The quotation I have just given from the European Court of Justice decision is the Kramer case, which is to be found on page 52 of the report. Further decisions have shown that when any question falls within the scope of the express or implied powers and duties of the Community it is a matter for the Community; and individual member states are not allowed to initiate, take part in or execute any agreement affecting such a question. The logic of it is that one could not be a member of the Community and speak with a divided voice. The voice of member states is expressed through the council and through the various committees which, in effect, make up the collective mind of the Community. You could not have one vote and voice on behalf of the Community and 12 discordant votes on behalf of different member states. Your Lordships will find that in the AETR case, which is in the committee's report on page 51, the European Court of Justice said that,
to the extent to which Community rules are promulgated for the attainment of the objectives of the Treaty, the Member States cannot, outside the framework of the Community institutions, assume obligations which might affect those rules or alter their scope".
There is one area here to which I draw attention; that is, that the Commission claims that member states may not even negotiate with third countries on matters which have not been the subject of internal Community regulations. Where it is said that the Community has power to enter into negotiations on those matters then member states are precluded. Your Lordships will find reference to that in paragraph 23 on page 11. There is a conclusion, or recommendation, of the committee in paragraph 76, on page 26, which states:
Where there are as yet no internal Community rules, it would … rarely be appropriate to exercise external competence under
the Treaty. I shall be interested to hear the Government's reaction to that recommendation.
Some provisions of international and third party treaties—as with provisions of internal effect by the Community authorities—are enforceable without any action by the Parliament of the United Kingdom and may even be enforceable by private individuals without any pronouncement by the Parliament of the United Kingdom. That, which gives very wide powers to individuals, stems from another decision of the European Court of Justice which is to be found on page 54 of the report and is the case of Van Gend en Loos. The European Court states that,
the Community constitutes a new legal order of international law for the benefit of which the States have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only Member States but also their nationals. Independently of the legislation of Member States, Community law therefore not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage.
§ Your Lordships will see two examples of that in the report. The first is on page 56—the Bresciani case—and the second is on page 57, where for the insular Englishman there is a quite unpronounceable piece of German litigation. In each case a private 487 individual challenged charges levied by his own Government on the ground that those charges infringed a Community convention entered into with various African, Caribbean and Pacific countries. The European Court of Justice held that the individual could apply to his own court and be upheld by that court under the guidance of the European Court in declaring that the national law, in so far as it was in conflict with the European Treaty, was not be to observed.
§ There arises from that some danger of uncertainty because it is not always abundantly clear whether the provision which is entered into in a treaty is one which an individual can enforce or whether it is one which the individual cannot enforce unless and until his own Government have brought into force legislation in his own country. In that respect your Lordships will find at paragraph 79 on page 27 that the committee do see dangers in further development of this notion, or the direct application of provisions in the Community's treaties.
§ As to the exercise of the powers, your Lordships will find between pages 36 and 45 of the report, in Sections I to III, an extensive account and list of the number of treaties and agreements into which the Community has entered. They cover a very great variety of matters, and extend over a very long period. At Section IV, which is in the report at page 46, your Lordships will find an impressive list of the international bodies upon which the Community is represented. Those are the powers and the extent of the powers.
§ I turn now to what I might call the member state safeguards. First of all, the procedure is this: when the Community is thinking of negotiating with countries outside the Community—the United States, any of the African states, or any state which is outside the Community—then it must first ask the Council to authorise the Commission to open negotiations with those foreign countries, and it must not only ask for authorisation, but it must obtain what is called a "negotiating mandate". It must tell the Council what it wants to do and on what terms it will negotiate. It will then be for the Council to decide, speaking unanimously, not only whether the Commission shall open negotiations but whether it shall do so either on the terms requested by the Commission, or on some other terms. When the Commission has received that negotiating mandate, it then proceeds to negotiate, but it is assisted by a committee which is appointed by the Commission. This committee consists of expert representatives from member states. Your Lordships will find that mentioned on page 18 in paragraph 50 of the report, and on page 17, paragraph 45.
§ So, to begin with, there is the intervention of the Council, which of course includes representatives of every member state, and then the Commission's hand is held to a certain extent by an advisory committee which also includes representatives of the member states. Finally, when the Commission has reached terms pursuant to that mandate with the foreign country, the agreement does not come into effect except by virtue of the Council. The Council is the body which concludes the agreement, and usually it is provided that the Council itself must first consult with the European Parliament.488
On page 27 of the report at paragraph 78 your committee have recommended:
The exclusive nature of the Community's competence and the impact on the powers of Member States need to be clearly understood and should be borne in mind by Her Majesty's Government when they consider proposals for the initiation of negotiations".
It is at that stage when a decision needs to be made as to whether the powers sought are within the powers of the Community; if so, they would be approved, because as everybody knows, once the carriage has started and once the negotiations are under way, it is almost impossible for any individual member state, except on a very dire matter, to say "stop".
§ There is another type of agreement which presents some difficulties, and that is what is known as a mixed agreement. There are some negotiations with countries into which the Community is competent to enter in certain respects, and member states are competent to enter in other respects. Examples in three fields are: taxation, the Law of the Sea Convention and a recent convention under negotiation concerning the conservation of wild flora and fauna. So far as taxation is concerned, of course the Community is vitally interested because of VAT, but at least up to the present it is not for the Community but for Her Majesty's Government to be interested in such matters as income tax and capital gains tax. So if there are negotiations on taxation which concern all taxes, then that is a mixed negotiation and a mixed agreement. The United Kingdom will wish to be there to safeguard its rights and powers as regards income tax; the Commission will wish to be there to safeguard its rights as regards VAT and any other customs imposts in which the Community is interested.
§ Similarly, in the recent convention on the law of the sea there were some matters which concerned the Community because they affected trade and there were other matters which concerned the member states because they dealt with the question of territorial rights, international rights of passage in the sea and so on. That leads to one difficulty because it is not always abundantly clear where the interest of the Community stops and the interest of the member state begins, and nobody wants a wrangle in the middle of an international negotiation, or any doubt and uncertainty.
§ In practice we have seen from the evidence which was laid before us that these matters are resolved by the representatives of the Commission and the representatives of the member states meeting beforehand and working out how they will operate the terms of the negotiations. For my part I was filled with admiration at the pragmatic way in which these very real and nutty legal problems were solved by goodwill on the part of the Commission and on the part of those representatives of Her Majesty's Government who were taking part in the negotiations.
§ In paragraph 80, at page 27, your committee concludes that it is not always easy to identify where the division lies between the Community and the member states in international negotiations, and considers that it will often be desirable to do this in order to avoid any further uncertainty and differences of opinion—in other words, to divide in a separate 489 schedule, as I think the Convention on the Law of the Sea demands, those matters for which the Community is answerable to the international community from those matters which are the responsibility of the member states individually. I should be interested to hear the Government's response to that recommendation.
§ There is one matter on which the committee thought that there were some defects in the present system. As I have told your Lordships, when the United Kingdom Government are negotiating an international treaty there are arrangements for scrutiny under the Ponsonby rules and no treaty is brought into effect unless the necessary legislation has been passed. But the difficulty which arises over Community matters in dealing with international affairs is this: from the very beginning every internal proposal for a Community law comes to the Parliament of this country, and so to your Lordships' House, for scrutiny and consideration. But in connection with international treaties, as I have told your Lordships, the ball opens with the Commission going to the Council and asking for a negotiating mandate.
§ The difficulty which arises is that if that proposal were then sent on to member states for the scrutiny of their governments and parliaments, it would necessarily mean that the negotiating mandate would become known to the people on the other side with whom one is negotiating—and nobody likes to enter into negotiations by putting all one's cards on the table, showing exactly what one is after, how far one is prepared to go and generally what is one's negotiating hand. Therefore, proposals for negotiations are usually not laid before Parliament and do not reach your Lordships until the negotiations have been concluded.
§ When they have been concluded and the Council is being asked to ratify and bring the agreement into effect, the text is submitted for the scrutiny of Parliament. But by then the carriage is not only half way down the road; it is almost entering its destination. The effective power of scrutiny of this House is very much more limited in practice if scrutiny does not take place until negotiations have been finished and there is merely the step of asking the Council to conclude the agreement.
§ There are some negotiations in which it is difficult to see why they should not be submitted to the House for scrutiny, even at the opening stage of negotiation. For example, negotiations have been begun by the Commission with some foreign countries with regard to the operation of legal professional privilege. That is a matter where the Commission's and Community's hands need not be kept close to their chests, and there is no reason that one can see why the actual proposals for a negotiating mandate should not have been submitted for scrutiny.
On that subject your Lordships' committee make recommendations at paragraphs 83 and 84 of the report. In particular, I should be grateful to know the Government's reaction to paragraph 84:
The Committee consider that the current machinery for … scrutiny is inadequate in relation to treaty-making by the Community",
because it is too late by the time that it finds out about it, and,
consider that Parliament should be informed of proposals for the initiation of treaty negotiations in the same way as it is informed of proposals for other action"—
that is to say, at the beginning and not at the end—
whenever that can be done by means which do not disclose confidential matter".
§ The subject of the report presents theoretical and practical difficulties, and your Lordships' committee was impressed by the understanding of the problems involved on the part of the departmental witnesses and on behalf of witnesses from the Commission, who gladly came over and entered into great discussions with the committee as to both the theoretical and the practical defects. We found that all the theoretical problems to which we referred were commonly being ironed out, and we were encouraged by the degree of co-operation shown among the departments of Her Majesty's Government and the Community institutions.
§ Nevertheless, the report draws attention to a subject which is of great importance. It is a subject on which we have ventured to draw the attention of Her Majesty's Government and departments to the problems involved, so that whenever any new negotiations are proposed, people will draw a deep breath and say, "Do we think that the Community really has power to do that? Is it within its competence, or should it be left to the member states?" And they should consider that problem apart altogether from the merits of the proposals; namely, whether they are a good thing or a bad thing.
§ This subject is, as far as I am concerned, a hard nut to crack and would, I think, have been impossible without the help of the committee's legal assistants, Mr. Karl Newman and Mr. Jonathan Stoodley. I am sure that I speak for all members of the sub-committee when I say that we should not have fought our way through the thickets of Community law in theory and in practice without their help and guidance. My Lords, I beg to move.
§ Moved, That this House takes note of the Report of the European Communities Committee on External Competence of the European Communities (16th Report, 1984–85, H.L. 236).—(Lord Templeman.)
§ 6.34 p.m.
§ Baroness Serota
My Lords, I rise to take part in this debate on behalf of my noble friend Lady Llewelyn-Davies of Hastoe, the Chairman of the European Communities Committee. Unfortunately, she is unwell and therefore unable to be present with us for this debate tonight. I know that the whole House would wish to send her its very best wishes for a rapid recovery. As your Lordships know, she always attends the debates on our reports but only on rare occasions does she feel the need to add to the excellent work of the committees. But she saw this occasion as one on which she should speak, because, as I shall explain, it concerns the whole process of the scrutiny of European legislation by your Lordships' House, and she greatly regrets her inability to be present.
I know that my noble friend would wish me to begin by saying how much the committee is indebted to its 491 legal sub-committee, Sub-Committee E, whose report we are debating today. The sub-committee examines specifically all legal questions arising from the Community's proposals for legislation. Sometimes it does that by holding an inquiry itself; sometimes it makes a contribution to the inquiry of other sub-committees. It examines specific proposals from Brussels and it also from time to time considers general issues, such as the present one of external competence. To show its versatility, perhaps I should mention that it is even now looking at a subject that is primarily of agricultural importance, and that is the cessation of milk production.
One of the reasons why the sub-committee is so formidable to those of us who do not serve on it is that it is traditionally chaired by a Law Lord, and my noble friend and the whole committee are especially grateful to the noble and learned Lord, Lord Templeman, for the work that he has done both on the subject before the House for debate tonight and also in the other inquiries which have been held during his term as chairman of the sub-committee. The sub-committee also has several other eminent lawyers among its members, some of whom are to speak in the debate tonight, and also a few non-lawyers. The latter no doubt have their own special role in ensuring that what the lawyers agree is still intelligible to the rest of us who are not so well equipped.
This report on external competence is of course one of the most important to come from Sub-Committee E in recent years. The noble and learned Lord explained the external treaty powers of the Community and how they can have a major effect on the Government and the Community itself, particularly on the Community's internal competence. Many of us found the report a real eye-opener on the potential extent of Community competence. Each new power gained by the Community is a power lost by the member states. That may or may not be desirable. One would not wish to argue whether the transfer of powers is good or bad, but I am sure that we must make such transfers with our eyes open and not by mistake or by omission.
My noble friend Lady Llewelyn-Davies was particularly concerned to speak on just those paragraphs in Part 5 of the report which deal with the scrutiny of treaty negotiations by the United Kingdom Parliament—the part of the report that the noble and learned Lord dealt with towards the end of his able and clear introduction of what I regard as a very complex report to read.
The House has a very well defined and successful method of scrutiny. It is the chairman's responsibility to take part in that process both by the preliminary sift of documents (amounting, I gather, to some 800 a year) to identify those which need further scrutiny and then by taking part in the examination of witnesses. The House has delegated its powers of scrutiny to the European Communities Committee, and we have an obligation to ensure that the scrutiny process does not miss anything of significance to the United Kingdom. To that extent we have a watchdog function. But there is also a very positive side to the scrutiny function. We believe that our scrutiny and the reports that we produce can be helpful both to the Government and to the Community itself. By airing the main issues at the 492 pre-legislative stage, we may be of help to the Council of Ministers in coming to its conclusions and to the Commission in its formulation of future policy.
The report says in paragraph 84:the current machinery for Parliamentary scrutiny is inadequate in relation to treaty-making by the Community".I should like, if I may, for a few moments just to underline a point that the noble and learned Lord, Lord Templeman, has also made to us in opening the debate on his Motion. This we see as a serious criticism of the scrutiny process of the House. The report goes on to say:By the time Parliament is informed of a proposed agreement [for a Community treaty] the text has been settled and it will often be too late for any effective action to be taken. The Committee therefore consider that Parliament should be informed of proposals for the initiation of treaty negotiations in the same way as it is informed of proposals for other action by the Community, whenever this can be done by means which do not disclose confidential matter".I am sure that those last words are important but, nevertheless, the recommendation from the committee stands as a whole. The chairman of the Select Committee strongly supports the legal subcommittee's recommendation on this particular point. If we, as a committee, are to fulfil our obligations, we must surely have the opportunity to consider the relevant documents early enough; otherwise, our efforts will be ineffective. It is not enough for the House to be informed of treaty negotiations when those negotiations are already complete. We must hear about the proposals in advance whenever this can be done by means which do not disclose confidential matter. We recognise, of course, that in any treaty negotiations, the partners to the negotiations must not be expected to disclose all their hand in advance. This would clearly undermine the negotiations. But the committee is, I think, right in saying that Her Majesty's Government could be more forthcoming than they are at present.
It might be argued that confidentiality was an obstacle. But surely that is not the case. As the evidence from the Foreign and Commonwealth Office explains—this is quoted on page 3 of the report's evidence section—the Commission keeps the European Parliament informed from a very early stage of negotiations. The European Parliament receives information about the Community's treaty negotiations in advance of their commencement, as the noble and learned Lord, Lord Templeman, has said, and also during the negotiations. Some of this is not made available to the United Kingdom Parliament. Admittedly, the two parliaments are not on all fours. We have different functions and the relationships between the Commission and the European Parliament are different to those between British Ministers and this House. But the Commission's practice shows that there can be no basic objection to giving this House more information at an early stage. It also confirms what all of us, I am sure, feel—that there is a place for parliamentary scrutiny of Community treaty negotiations.
This aspect of the scrutiny role is being overlooked. When we are involved in considering treaty proposals, it is far too late to do anything effective about them. It could be argued that this does not matter and that Parliament, after all, does not control United Kingdom treaty negotiations. But the great value of 493 the Select Committee's report, I would submit, is to show us the possible effects of Community treaties and to make us realise what many, if not most, of us did not see before—namely, the extent to which treaties can gradually extend Community competence and so transfer legislative powers from this Parliament to the Community. Furthermore, and perhaps just as significant, the treaties will often commit this country to change its laws. In some cases, the treaty will even have the effect of changing our laws themselves. We can see that the scrutiny of treaty negotiations really does matter and that Community treaties have wider implications for Parliament than United Kingdom treaties.
I would therefore conclude by underlining and, indeed, repeating the point that was put to the noble Baroness, Lady Young, by the noble and learned Lord, Lord Templeman, at the end of his introductory speech, and, on behalf of my noble friend, ask the Minister the following question of which notice has been given. Does she agree that Parliament should be informed of proposals for the initiation of treaty negotiations in the same way as it is informed of proposals for action by the Community whenever this can be done by means that do not disclose confidential matter? I would underline those last few words. In the light of the very important report that we are debating, I do not see how the answer to that question can be anything but "Yes". It may be a qualified "Yes". I know that my noble friend will be only too glad to enter into discussions with the noble Baroness and her officials about the most appropriate ways of improving that aspect of the scrutiny process of the European Communities Commission on behalf of this House. Any change in this House would, of course, need to be implemented in another place. This is not a matter for unilateral action. But the committee looks forward to receiving a clear indication tonight that we can close what must surely be recognised as a potential loophole in our own scrutiny procedures.
§ 6.44 p.m.
§ Lord Banks
My Lords, I should like to join the noble Baroness, Lady Serota, in thanking the noble and learned Lord, Lord Templeman, for the way in which he has introduced the report to us this evening. I am sure that the whole House will be grateful to the noble and learned Lord and to Sub-Committee E for the informative report that they have presented on a complex subject. The report throws light on some difficult legal matters. This is most helpful to a layman like myself. I can well understand that those who oppose United Kingdom membership of the European Economic Community and who do not think that the United Kingdom should be bound by the Treaty of Rome might find the report irksome reading. But for those of us who believe that our future prosperity and the preservation even of our democratic system depend on increasing European collaboration and unity, there is nothing in it that is disturbing.
The report makes clear certainly that the external competence of the EC is very wide. In fact, after taking into account the express powers, the implied powers, and Articles 100 and 235, the committee say that they find it difficult to identify any clear limit to the possible 494 extent of the Community's external competence. Yet the committee are not alarmed by that. Nor am I. The safeguard, as the noble and learned Lord pointed out, is that there can be no extension of the external competence into a new area not covered by specific existing powers unless the member states are unanimous. I am all in favour of more majority voting. I have frequently spoken in favour of it in this House, and I shall no doubt do so again. But this is one area, I feel, where unanimity is rightly required.
At first sight, the implied powers, through the application of the doctrine of parallelism, may appear to offer the widest scope for extension since they permit external competence wherever internal competence exists, whether it is exercised or not. However, as we have seen, any extension of the external competence of the Community into new areas not covered by specific existing powers requires unanimity in the Council. The potential loophole would appear to be the specific power given by Article 113 to deal externally in matters relating to the common commercial policy. As the committee report, there is dispute between the Commission and the Council about the interpretation of this article. The Commision's view, I understand, is that measures primarily intended for a non-commercial purpose, if they have some commercial implication, are allowed. Again, as I understand it, the Council's decision, assuming that the Commission's interpretation prevails, would be by qualified majority. So there could be the extension of external competence into what was in effect a new field without unanimity being required, although not, of course, without the Council's approval by qualified majority. While the committee note this situation in their report, I cannot find that, in their conclusions, they have expressed an opinion about it.
Another matter about which I am a little puzzled is this. Paragraph 24 says that the exercise of specific powers is mandatory. The Community is obliged to act—and those words "is obliged to act" are in the paragraph. But paragraphs 20 and 21 refer to the fact that where the Community, although having competence arising from specific powers, has not yet acted, the member states may act on a transitional and fiduciary basis. Fishing is given as an example. Individual member states impose quotas while awaiting agreement on a Community fishing policy. It would therefore seem that, despite having specific powers, the Community can at least postpone action; and I wonder for how long the Community can legitimately postpone such action.
One point which I noted in the examination of the witnesses from the Department of Trade and Industry was this. They were asked whether proposals for the exercise of the external competence of the Community were tested by the department to ensure that they were within the competence of the Community. The reply was that they were tested as to whether the proposal was good or bad. The implication was that competence would be considered only if the reaction of the department was hostile. The questioner, on the other hand, seemed to be implying that the department should look at competence first. I wonder whether that is right. Surely the legal department of the Council should test the competence to make sure 495 that the Commission is not "pulling a fast one" on them. After that I think it natural that member governments should be concerned with the merits of the proposal and that they should look at the competence only if they were opposed to the course of action which was being proposed.
I agree with the committee that where there are yet no internal rules it would rarely be appropriate to exercise external competence. I agree also that the exclusive nature of the Community competence needs to be clearly understood. I am not so sure that I agree with the committee's opposition to the European Parliament's conversion of the right in some cases, and practice in others, of consultation into a power of veto by refraining from giving an opinion. I do not think that we can blame the Parliament for seeking to gain power by exploiting the procedures. Surely, Parliaments have always done this.
I hope to see the Parliament's role and its powers greatly increased. A modest step in that direction was taken in the Luxembourg summit proposals—now regrettably threatened by the opposition of the Danish Parliament. But if there should be a greater role for the European Parliament there remains an important role for national parliaments and for this Parliament in particular.
Wherever British Ministers, by virtue of the fact that they are British Ministers, are participants in Community decisions, they should be accountable to this Parliament. I agree with the committee that our parliamentary scrutiny of Community external agreements and treaties is not altogether satisfactory. When we are faced with the order necessary for a treaty to be given the force of law in the United Kingdom, as has been pointed out, all has been decided and one is not sure that a speech dealing with the subject matter of the treaty at any length is very welcome at that stage. I was greatly encouraged by what the noble Baroness, Lady Serota, said about that.
I support the recommendation of the committee that Parliament should have an earlier opportunity to discuss the subject matter of the proposed negotiations, and, in conclusion, may I once again thank the committee for the useful service which they have performed in presenting this comprehensive report.
§ 6.55 p.m.
Viscount Colville of Culross
My Lords, I am sure that I am not the only Member of your Lordships' House who has found the membership of one of the European sub-committees an exceedingly educative experience. Certainly on this occasion the combination of the chairmanship of the noble and learned Lord, Lord Templeman, and the wisdom of our advisers, not least in selecting the witnesses whom we invited to hear, led to a whole area of investigation which I personally did not know existed. I am extremely glad to find that the points that we were trying to get over in this report have already been very fully appreciated by the two previous speakers, who were not members of the sub-committee. I believe that those of us who were members should confine ourselves to highlighting one or two very particular matters, because this was the report of us all.
496 In what I am about to say I do not wish in any way to undermine the message that the report includes: that there is nothing here to cause alarm or dismay, and certainly there is nothing which should undermine our faith in the onward progress of our membership of the European Economic Community. However, there are a few points and I should like to draw attention to one of them which surprised me and may be a matter upon which my noble friend Lady Young would like to come to a conclusion, either tonight or on some other occasion.
The noble Lord, Lord Banks, touched upon this point. It is referred to in paragraph 17 of the report. The whole of the doctrine of the competence of the EC is based upon a kind of legal train of thought which—certainly to a lawyer brought up in the jurisdiction of the courts of this country—comes as a certain novelty. The noble and learned Lord, Lord Denning, knows all about this and has spoken about it on many occasions. But it is a matter of interpretation of the law which is much more usual in Europe than in this country. Therefore, I confess that, when I first came to this subject and found that we were discussing four articles of the treaty in the way that we were, I was surprised.
The two external treaty-making articles, Articles 113 and 238, if exercised, carry with them a transference of power, as the noble Baroness, Lady Serota, has said, not only in terms of external treaty making but also thereafter in terms of what one can do domestically in one's own Parliament—because there must be no inconsistency between what the Community does among the international community and what we do in order to regulate our own affairs here.
In the opposite direction, if the two open-ended articles in the treaty, Articles 100 and 235, are activated in ways which inevitably are not in accordance with the specific provisions of the treaty—because that is why they are openended—then there may follow in the exercise of that power certain inhibitions on this country, like all the members of the Community, in making treaty arrangements overseas. This is the doctrine of parallelism about which the noble Lord, Lord Banks, has just been speaking.
I wish to draw to the attention of the noble Baroness, Lady Young, what we say in paragraph 17. I would suggest to the House that there is there a particularly stark example of what this sort of legal interpretation of a text of the type that the Treaty of Rome comprises can lead to. There are the two views put forward. The point is illustrated by the proposition that there should be an external treaty negotiated to protect endangered species by banning their importation into any of the countries which are members of the Community. The Commission, which proposed this, takes the view that if the instrument which is going to carry into effect the proposition that it put forward is of a commercial character, then that falls within the terms of Article 113. The Council takes the view that it is not the question of the instrument but the objective of the proposed international negotiation which matters.
I think that as a result in this particular case the Council prevailed and the matter did not go forward. But one can see that there is room for an enormous 497 amount of dispute about the way in which an article like Article 113 should be interpreted and, according to the way in which one looks at it, there could or could not be room for an almost indefinite extension of the competence of the Community to legislate and, in the end, to legislate in that field exclusively for a particular subject matter.
What seems to me to arise out of that passage—and I hope I have explained it in accordance with the text so that it is comprehensible and I have not muddled the matter—is that departments in Whitehall, when confronted by the proposition that there should be either an external negotiation or an internal directive which could therefore bring about the transfer of external treaty-making powers as well, should just bear this in mind; they should consider—and I am not sure that I entirely agree with the noble Lord, Lord Banks—not only the specific objectives that the negotiation or the proposed directive itself may have in mind, but also consider the implications, because it is with the lead department in Whitehall that the responsibility primarily lies to consider whether there should be a matter of competence raised at all.
I would suspect that the main achievement of this report, in addition to raising the question of Parliament's scrutiny of international treaties at earlier stages than has been possible hitherto, will be to draw attention to all lead departments in Whitehall that this issue of comptence is a potential matter for consideration on every occasion. Probably in most cases it will not matter, but it is nevertheless something that appeared to me, listening to the evidence, not always to have been taken into account as being anything of enormous importance.
I believe, in view of the ability to interpret these articles in one way or the other, that it is something on which advice should be taken if necessary, and on which an opinion should be clearly formed before our officials and our Ministers go into the decision whether or not to support one of these measures, whether it is internal or external.
Without making too much of a fuss about it, and without suggesting that it is any sort of threat, I believe it is really an issue. It shows how dynamic the Community is becoming both in its own political institutions and in the court and the way the court interprets the treaty judicially. To that extent, I believe that this report may have drawn attention to something which is quite important and which will certainly go on developing, as does the Community.
§ 7.3 p.m.
§ Lord Denning
My Lords, this report deals with a matter of great constitutional importance. I should like first to express our gratitude, as your Lordships will, to my noble and learned friend Lord Templeman not only for his conduct, his chairmanship of the committee—you can see how he examined those witnesses and got them to deal with the points—but also for the report which covers so many important fields. It points out not that perhaps things are going wrong at the moment but that there are dangers, difficulties, and defects lying ahead which must be taken into account by the Government and their departments.
498 Perhaps I may just draw attention to those troublesome words, "external competence"—very forbidding they were when one read them—as distinct from "internal competence". "Internal competence" means the Community law of Europe as applying to all the member states of the Community, whether it is nine, 10, 12 or whatever it may be. The internal competence is the community law applying internally to all those states of Europe.
The external competence is when they make treaties. The Community as a body—it is a person; it is a body—can make treaties. It can make treaties which bind the members. The terms of those treaties are directly enforceable in the national courts. Not only that, they take precedence over any of our own laws or treaties which may be in conflict with them.
May I first consider—because the principles apply afterwards—the principles applying to our internal competence. They have been developed by the European court, perhaps in an extended way. There is first the principle of what I may call direct applicability. That is best illustrated by a case from Belgium.
Under the treaty there is to be equal pay for equal work as between men and women, and that is to be implemented by the states' own legislation. Belgium did not implement it. A Belgian air hostess complained that she did not get as much pay as the steward on the plane although they were doing the same work.
There was no remedy in the Belgian courts at that moment because they had not legislated upon it. She went to the European court at Luxembourg. They said that she was entitled to equal pay for equal work. She was entitled to enforce it, and the Belgium courts had to enforce it even though they had no legislation upon it. That is called the principle of direct applicability.
The other principle which has emerged in regard to internal competence at the moment is that the Community law has supremacy over our own internal law. We had a statute which differentiated between men and women in a bank according to their pensions. A lady took the case to the European Court at Strasbourg, and they said that the treaty position took priority over our own statute. Therefore, Community law has priority even over our own statute law. That is the other principle of the supremacy of Community law.
Now I turn to external competence. There the European Court at Luxembourg has applied these principles. If the Community makes a treaty on behalf of the members, that can be directly applied by a citizen in England taking a case in our own courts. It is directly applicable. The committee point out that there are dangers ahead in that development.
Not only that, but if the Community as a whole makes a treaty with others, that excludes any power in us, in our own Crown, to make a treaty on the said subject. That may be called the principle of supremacy in external affairs. In coming to these decisions the European Court has applied methods of interpretation which we would not countenance at all in our courts. We go by the letter of the statute, or the treaty if it comes in.
I am afraid—but it is the Continental policy—that they look at the policy behind it. They do not look at 499 the words so much. Through all these cases which we are considering you will see that they have construed the treaty and its meanings in a rather expansionist way. Expanding according to policy. If one looks at it fairly, it is according to what they think it ought to be; namely, a unified Europe. General laws; treaties to be negotiated—it may be quite right—by the Community on behalf of all. A material question may come before us before long.
Your Lordships will remember that we debated years and years ago a very important report on the Law of the Sea Convention. Year after year the nations of the world have been trying to agree on what the law of the sea should be; whether the territorial waters should be 12 miles, or economically they should be 200 miles or whether the deep sea beds should be international. This was a most important convention ratified by many countries, but not by the United Kingdom. This is considered in the report. It is possible for the European communities themselves to ratify this by a majority without the United Kingdom having ratified it. My Lords, what would be the effect of that? Goodness knows! The European Court or some other body may pronounce upon it later. The report shows that there will be difficulties of delimitation of the powers within the Community and what is left of the powers of the member states.
I have spoken of the dangers and the difficulties, but the defect to which the report draws attention in its last paragraph is that there is no effective machinery at present for scrutiny by this country or its committees of the treaties which are being negotiated in the Community. In our internal law we have the directives being scrutinised by the Committee but at the moment as the report says in almost the last paragraph such treaties go through with a rubber stamp. The report says that that is inadequate for our present system. That has been referred to by others.
I draw attention to these points to show your Lordships that the committee have considered matters of great constitutional importance. They have drawn attention to the whole subject, quite rightly applauding what has been done up till now, applauding agreements within and with all the officials in Brussels and here about what is being done; but warning them of the dangers, the defects and the difficulties. Those are matters of which I am sure Her Majesty's Government and those advising them will take full note because this is a most valuable report and those points should be drawn to the attention of others in the negotiations. We are much indebted to my noble and learned friend Lord Templeman and all his colleagues for this most valuable report.
§ 7.13 p.m.
§ Baroness Elles
My Lords, the report on the external competence of the European Community goes widely and deeply into the many problems that arise in this new position of the Community in relation to its treaty-making powers. I should like to express my gratitude to the noble and learned Lord, Lord Templeman, for all the work that he has put into it. I thank him, too, as I read through the report, for the courteous way in which he dealt with the many Commission and council officials who came before him and who tried their best to give a true account of 500 how they saw the problems which arise. It was the questioning of the chaiman of this committee that brought out so many of the difficulties so clearly. We should be grateful, not only for the general tenor of the report but, in particular, for this. I pay tribute to the many officials who came from Government departments who again took a pragmatic view of the work they have to undertake on behalf of this country. I think they came out of this evidence with full credit, and I mention that by the way.
I mention also—the noble Baroness, Lady Serota, touched upon this—the great attention and concern with which reports from your Lordships' House are read in the Community by the Council of Ministers, the Commission, the officials and members of the European Parliament. The very high standard of the reports is highly regarded. I know that this report was read with the greatest concern by all those in whose hands it happened to fall.
Your Lordships have touched on many of the aspects contained in this report, but I shall confine myself mainly to paragraphs 62 and 63 of it, and to paragraph 82, which comes under the "Summary of Conclusions". Those three paragraphs refer mainly to the role of the European Parliament. This is something which could be elaborated on a little further, as it might have given rise to some misunderstandings.
First, we must assume from everything that has been said and from the content of the report that we all believe in the necessity for some form of democratic control over the acts of the executive, whether they be national or European. There must be some form of democratic control, and I think this is recognised, particularly in paragraph 84 with regard to the scrutinising powers of national governments. This is a concern which must affect us all either as Members of your Lordships' House or as members of the European Parliament. As has been said, under the Treaty of Rome and in accordance with the European Communities Act 1972 certain competences were transferred from national governments to the Community, so that the Community now has exclusive competence for participating generally in the conclusion and for overseeing the implementation of treaties which have been drawn up as a result of competence under Articles 113 and 238, in particular.
But also there are certain areas of international treaty law which not only affect the Community but give certain competences which remain with member states. I shall touch on this later. Even under Article 113 members states have access to and participate in negotiations to some extent in and through the special committee, which has representatives of member states advising during the whole of the process of negotiation. But it is the Commission which is responsible for negotiations on a mandate from the council. It is at the stage of the mandate from the council and before the mandate of the council is given that I should have thought national Parliaments should be exercising their scrutinising powers, should a mandate be given by the Council of Ministers, on which there is a representative from every member state government, to proceed with such negotiations. Once that mandate is given we must recall that some of the treaties are concluded by a qualified vote or a majority vote, which means that a member state may 501 have lost all control of such negotiations by the time they are concluded.
While the committee clearly shows concern for the role of national Parliaments in this process, it is only the European Parliament which has the procedural and constitutional ability to scrutinise the Commission and the council. Even if national Parliaments can question their own Minister he is, after all—I have the greatest respect for our Foreign Secretary—only one out of 12 Ministers. So the European Parliament remains the only democratic forum which can scrutinise by the normal democratic procedures—that is, by questions and debates, and so on—both the presidency and the office of the council, which represents the 12 member states plus the Commission.
The European Parliament is by its nature the only body that can excercise this role. The European Parliament does not only have the obligation to scrutinise executive and administrative acts, but also has to be responsible to its electors for the financial implications. It is difficult to imagine, certainly commercial trade agreements, and of course many of the association agreements into which the European Community enters, which do not have financial implications. The European Parliament is one arm of the budgetary authority, with regard to the Community budget, to which I am referring, and there these implications would arise within the terms of budgetary discipline and budgetary decisions.
Furthermore, at the end of the day, it is only the European Parliament that can give the budgetary discharge to the Commission concerning expenditure that has been incurred during the course of a budgetary year. Thus, of course, the implications that might arise, particularly on the financial side, from negotiations that may be entered into by the Community, are of concern to the European Parliament. So, unless the European Parliament exerts this scrutinising role, there could be what is commonly known in our jargon as a democratic deficit: that there would be no democratic control over the treaty-making power of the Community.
This is a particular point to which I wish to draw attention of your Lordships. It has been accepted by this report that the national Parliament appears, at any rate, to have but a very little role in the scrutiny of these treaty-making powers of the Community, and it is only by the European Parliament successively trying to get more control in this field that there is any scrutiny at all. Until the so-called Luns-Westerterp procedure was initiated with regard to Article 113, there was no control democratically of any kind at all over the trade and commercial treaties which were being entered into by the Community.
I should like just briefly to comment on paragraph 63. As I have indicated, successively the role of the European Parliament has been enhanced by better relationships between the Commission and the Council. As a result of the Stuttgart declaration of 1982, the Parliament is now to be consulted on all major significant international treaties. However, with regard to the veto, I know that the evidence that was given to your Lordships referred to internal rules of the Parliament, but I am not certain whether it could ever be that the Parliament could exercise a veto on a 502 Community treaty-making power. The internal rules of procedure of the Parliament refer specifically to Commission proposals to which amendments may have been made by the Parliament.
The two points to be made here are, first, that the Parliament can only delay the vote. It can suspend the vote for a month or two months, as it did, for instance, with the draft Vredeling directive that came before it two or three years ago. But it cannot actually veto and refrain from giving a vote for ever. Secondly, of course, it can pass or adopt a resolution which may disagree with some negotiating terms or as to whether a treaty should be concluded. Regrettably, I must point out, even as a Member of the European Parliament, that the Parliament is only being consulted, and of course there is no obligation whatsoever by the Council to take any notice of what the European Parliament says. The Parliament could vote for a resolution against the conclusion of a treaty but, as I say, there is no obligation that the Council should take any notice of that.
There are only two occasions of which perhaps I may give brief examples to your Lordships. One was on the question of the EEC Turkey association agreement, where the Parliament voted by a majority not to renew and not to resume relations with Turkey under that association agreement, and that advice happened to be followed. Secondly, quite recently, since the Council of Ministers now discusses with the Parliament the question of accession treaties under Article 237, although of course it is not within the treaty that we should be consulted, we had very close discussions with the Council of Ministers in the shape of Signor Andreotti, who was president of the Council at the time, and the only point about which the Parliament felt very strongly—and it was a specific parliamentary matter—was that members coming to the European Parliament from Spain or Portugal should not remain unelected possibly until the next direct elections to the European Parliament, which would have been in 1989. Since this discussion took place before the signing of the accession treaties, a provision has been entered whereby Spain and Portugal have undertaken that within two years of entry into the Community their members will be directly elected to the European Parliament.
Those are the only two cases that I know of where, specifically with regard to accession agreements, the Parliament's advice or request has been met, and with regard to association agreements where some resolution was adopted which was against renewing an association agreement. Broadly speaking, as I say, we are only consulted and it is up to the Council of Ministers either to take that opinion or not.
The noble Lord, Lord Banks, referred to the so-called Luxembourg reform package. If it was to go through, then the position of the European Parliament would indeed be changed because under new proposals in that so-called draft Act, as it stands at the moment, it is proposed that the European Parliament should be given the right, both under Article 237, with regard to accession, and Article 238 with regard to association agreements, to assent by a majority of its component members to proposals for ratification of a treaty. Of course, this radically alters the position of the Parliament, so it is no longer just being consulted: 503 it would be voting on whether or not to accept ratification of a treaty. As we know, this is not yet in force. It will be a matter for the Danish Government, as we know, to decide whether to sign this agreement. This is an agreement which will undoubtedly be debated in both Houses at Westminster before it is ratified. At least, I should imagine that there will be an opportunity to debate this very important document which is awaiting a signature.
I wish just to comment on the certain kinds of treaty such as the Lomé Convention, where both the Community and member states are directly involved. As your Lordships know, in this particular convention, which is a relationship between the 12 Community countries and about 68 African, Caribbean and Pacific countries, there are tasks which are allocated to the Commission, such as the management of food aid, and there are tasks which remain within member states' competence, such as the organising of buffer stocks. These are very real problems. It is in such areas that I certainly should hope to see a much closer co-operation between the relevant committees of the European Parliament and the Departmental Select Committee of another place and possibly the Scrutiny Committee.
This is much more a matter for on-going management and exchange of dialogue than one where a member should be invited to come and give evidence, such an invitation as your Lordships so courteously extend to Members of European Parliaments from time to time at your own subcommittees and your own Select Committee. However, I rather feel that in this case we might perhaps be considering some kind of way in which perhaps the senior members of the relevant committee of the European Parliament should from time to time be in dialogue with the Select Committees of another place in order precisely to discuss these kinds of problem, where the competences are divided but are extremely important.
In conclusion, I should say that there is a need for the work of the European Parliament to be extended, in so far as it scrutinises the administrative acts of the Commission and the political decisions of the Council of Ministers. As we all know, even these commercial treaties which look as though they are dealing with some quite abstruse matters, in fact affect the rights of individuals. I, as a member of the European Parliament elected by the citizens of this country, have a duty to protect the rights and interests of individuals who elect me to represent them in the European Parliament.
Therefore, I hope that your Lordships will agree that, although the European Parliament is sometimes represented in the popular press as an irresponsible body, it is not such an irresponsible body as many people like to think. It does a good job. It has a task to do. I should hope that your Lordships will give full support to the work of the European Parliament in the task of trying to scrutinise the work of the Commission and the Council in relation to the external competences of the Community.
§ 7.30 p.m.
§ Lord Beloff
My Lords, a couple of weeks ago I was asked by the Foreign and Commonwealth Office and 504 the Central Office of Information to take part with some Oxford colleagues in briefing a number of American journalists who were making a tour of Europe. They had already visited, I believe, Italy, the Federal Republic of Germany and Belgium; and this country was their next port of call. One of the first questions we were asked by this party of journalists was this: "We have been to several European countries and have asked them about the EEC, the Common Market; and we get very optimistic, up-beat replies. We come to Britain and immediately we get downbeat replies and criticism. Why?"
The answer I gave, as noble Lords may expect, is that by now, except in very specialised quarters, the original gilt has come off the European gingerbread, the countries look to the institutions of the Community for what they can get out of it. The group had been to countries which, on the whole, believe that they have done well out of the EEC, and perhaps rightly believe that they have done well out of it; then they came to a country which is still uncertain as to whether the pluses outweigh the minuses. I do not believe that their tour was going on to Denmark, or they might have found an even greater set of queries.
What I believe is the case, however, is that in some quarters in Europe—and it applies of course to nationals of this country—in the Commission and in the European Court and, in a rather different way as I think my noble friend Lady Elles has just pointed out, in the Parliament, they are anxious to increase their powers and authority and will go on using the treaty in every way they can as a basis for extending that authority. As I believe I pointed out in your Lordships' House when we debated the proposed Act of European Union, they do this the more eagerly the more they are frustrated about their ability to attain the original objective of a Community which was the creation of a genuine European common market.
It seems to me that it is only if we realise the degree of pressure that exists for perfectly honourable reasons—and those concerned are disciples of Jean Monnet—to extend the area of competence of the European institutions that this particular matter (which was the subject of the report of the subcommittee) can properly be judged. This is because it has been laid down by the court, as was pointed out by the noble and learned Lord, Lord Denning, in another connection, that there are possibilities of the direct application of Community law, that treaties make law and that therefore the treaties can be used to extend competence even in areas where it is not by any means clear that the treaty allots to the Communities that kind of competence.
There is, as my noble friend Lord Colville of Culross pointed out, some difference between the legal advisers to the Commission, on the one hand, and the Council, on the other, as to the legal method or the legal argument by which some of this activity can be sustained. But there is no difference between them, as we point out in paragraph 23 of our report, about the fact that in judging the question of competence they can look at the broad objectives of the Treaty of Rome rather than—as we would: and as I am sure the noble and learned Lord, Lord Denning, would—at what the treaty actually provides.
We pointed out that their enthusiasm seems here to run beyond the decisions of the court upon which they 505 in part rely. I would not dissent from the view of the sub-committee that at the moment no disaster has taken place as a result of this extension of powers. But, as other noble Lords have pointed out, there is a series of precedents being set which at some moment might bring us up against a derogation from the sovereignty of our own Parliament to which we would otherwise not assent.
I would point out to your Lordships, if I may, that the representative of the Foreign and Commonwealth Office whom we examined specifically used the analogy of the American constitution, the American federal system, as a justification for the use of treaty-making powers as a source of law. And the same argument was put forward by a learned professor of law, Professor Francis Jacobs, in his evidence, both written and oral, to the committee. It seems to me that if you are going along that path, you are going a great deal further than we undertook to go when we signed the Treaty of Rome. We did not imagine that we were going into a federation, least of all, a federation whose courts could rely upon the often extremely general language of the treaty itself.
Like, I think, my noble friend Lord Colville of Culross, I disagree with the noble Lord, Lord Banks, in his feeling that the officials of the government departments here were perfectly right in dismissing the question of competence as one which was a matter for the lawyers of the Commission itself. I may say as a non-lawyer, as a token lay person on this committee, that I was very shocked at their apparent indifference to competence; because what this indifference means—and if it were extended to our domestic departments we should be very worried—is that a department may do anything if it thinks it is a good thing to do, whether or not the powers to do it are actually conferred upon the department by statute or in any other way.
I was even more shocked that the learned professor seemed to give his adherence to this extremely dangerous doctrine. I would say in defence of Whitehall—not a role I often assume—that other government departments, notably the Revenue Department and the Home Office, when questioned, said that the question of competence is one which they would certainly look at when proposals came before them.
To my mind there are always phrases, there are always words, which sound a bell of alarm. I thought that this came in the evidence of the Director General of the Legal Services of the Commission—and I agree with my noble friend Lady Elles that they were extremely helpful and courteous in their submissions—said that what you needed in order to interpret Article 113 about the scope of commercial negotiations was a more philosophical approach. Whenever I hear the phrase, "a more philosophical approach", I believe that someone is trying to get round the letter of the law.
I think people may feel that these anxieties are a little far-fetched, but again the learned professor, Professor Francis Jacobs, said he could see the time coming when the Commission of the Community might extend its competence to the field of education, because it already had the right to intervene to assure proper provisions for the education of the children of 506 migrant workers. This does not seem to me an area in which we have contemplated abrogating sovereignty.
The general reply to those who, like myself, express worries is, "No matter", because in the last resort in most cases, though not in all cases, as the noble Baroness, Lady Elles, pointed out, unanimity is required in the case of a treaty and therefore our own Ministers have the last word. But it seems also that if they are to exercise this restraining power, the assistance of Parliament ought to be welcome to them; and it seems to me to be difficult to resist the view that there is no obvious reason why, when we receive proposals or draft proposals from the Communities for legislative action, we should not also at that stage receive any draft proposal for entering into negotiations—subject of course to all the normal caveats about confidential information, giving away one's negotiating hand, and so forth.
I may say I am not inclined to the view that we could, however, in our own Parliament emulate the kind of contact which appears to exist between the Commission when it is negotiating a treaty and the European Parliament. As we understood it from the evidence, and set out in the report, this is done by informal and oral discussions with the relevant committees of the European Parliament. I cannot myself see how we could, in a very different kind of Parliament, assent to discussions of this kind: informal, oral and presumably unrecorded. It seems to me that would lead to an almost endless vista of argument and I am surprised that has not so far happened, if this is indeed what normally goes on in the European Parliament.
Therefore it seems to me that we have really only one serious point on the questions which are within our own power—that is, parliamentary procedure—to put to Her Majesty's Government; namely, that it would be helpful at least if we could know about the Community's intentions in the sphere of treaty-making as we are informed about its intentions in regard to internal legislation.
For the reasons that I have given, the powers that are present or claimed for treaty-making are so important and could add so much to the competence of the Communities that this seems to me to be a precaution which a wise Government in the United Kingdom would readily embrace.
§ 7.44 p.m.
§ Lord Broxbourne
My Lords, this Committee, cujus minima pars fui, was indeed fortunate in the high quality of its chairman, and the noble and learned Lord has given further examples of that high quality in the speech which he made to your Lordships today. We were also fortunate in the high quality of our legal advisers, to whom again he has fittingly paid tribute. We were fortunate, too, in the quality of the expert evidence that we were able to hear, not only from representatives of the major Government departments in this country but from the Council and the Commission, in the distinguished persons of Dr. Glaesner and Dr. Ehlermann, both of whom I hold in high personal regard although, like my noble friend Lord Beloff, I do not always or necessarily agree with them on all these matters.
507 This is a complex technical subject as well as an important one. But three basic factors, I would think, lie at the heart of the matter. First, in an economic community of nations, seeking to operate in unison for the common economic good, the power of the Community to enter into such commercial treaties and agreements is reasonable and to be expected, provided always that it is done in a constitutional manner. Secondly, as your Lordships know, there are express provisions giving such power contained in Articles 113 and 238 of the Treaty of Rome. Thirdly, this external confidence is exclusive: that is, it passes in toto to the Community and deprives member states of the power to enact internal laws conflicting with those obligations. It is this third factor which gives rise to the important constitutional implications so properly recognised in this report.
There are two particular respects from the point of view of a national Parliament, and in particular a legal committee thereof, which give rise to concern and which require attention. First, there must be consideration of the means whereby Parliament can seek to ensure that proposed agreements are properly within the scope of Community competence, as expressed in the provisions of the Treaty of Rome; and, secondly, consideration of the adequacy of the machinery to enable Parliament to discharge its functions and to supplement it where necessary or desirable. The first matter raises the question of vires, and the second that of scrutiny.
As to vires, although it is reasonable and no doubt beneficial for the Community to exercise powers of external competence where a treaty so provides—that is basically in accord with Articles 113 and 238—it is also proper and equally important to confine such exercise within the treaty powers. This is of great constitutional and practical importance because the exercise of such powers, as I have said, excludes the exercise of similar powers by member states, exercising a national jurisdiction: that was a point so well made by the noble and learned Lord, Lord Denning.
The constitutional position, I would think, is clear. In the course of the proceedings I put this question to the Foreign Office witness (Question 24 on page 14 of the evidence):Is it not the case that even in the European Economic Community the question of vires has to be dealt with before questions of policy can arise? As a matter of policy, the Council cannot take powers which are not given to it by the Treaty. That is clear, is it not, from Article 4: 'Each institution shall act within the limits of the powers conferred upon it by this Treaty'? That is the basis of the Community structure, is it not?The witness said, "I agree". We have to be particularly watchful of the use sought to be made of Articles 100 and 235, the ones relied on for an implied power to extend the activities of the Community beyond those for which express provision is made in the Treaty of Rome. The reason, of course, is that the extension of Community jurisdiction into spheres not contemplated by the treaty or authorised thereby involves a corresponding diminution in the sovereignty of national Parliaments.
Of late, there has been a tendency to regard Article 235 as a sort of Open Sesame provision and increasingly to invoke it to justify Community 508 legislation in wider spheres—a tendency fortified by the thinking and aspirations of the authors of the Spinelli draft treaty on European union, with its federal implications. Left unchecked, this use of Article 235 in the context of external competence, and indeed well beyond it, could drive a coach and horses through the articles of the treaty itself, the basic philosophy accepted by member states on adherence to the Community.
How, then, can the jurisdiction and actions of the Community in this regard be monitored and controlled, and how can our Parliament usefully contribute to this end? That brings me to my other point—that of scrutiny. The procedure for scrutiny is dealt with in paragraphs 65 to 67 of the report, and is summarised in paragraph 83. That summary states:In connection with treaties two proposals are usually submitted by the Commission for action by the Council, one for the opening of negotiations and the other for conclusion of the agreement. Usually only the latter is submitted for scrutiny by the United Kingdom Parliament".This is a matter which has been expressly referred to by the noble and learned Lord, Lord Templeman, and by the noble Baroness, Lady Serota, and we are looking forward with interest to the responses to the questions that they have specifically put.
The position is obviously unsatisfactory as it stands, and is so recognised in the report. Her Majesty's Government should press for an amendment of these procedures whereby, as the noble and learned Lord has said, the information extended to our Parliament should include the opening of negotiations, thereby giving the opportunity for comment and suggestion at the formative stage of the proposals. This would bring the British Parliament closer to the position of the European Parliament in this regard.
My noble friend Lady Elles has referred to the position of the European Parliament, with all her distinguished experience of these matters, and it is set out at paragraph 62 of the report, to which she referred. I respectfully agree with my noble friend Lord Beloff. We cannot altogether share the position of the European Parliament in this, because their position derives to some extent from the ambience in which they operate, the geography of the matter and the personal relationships which they and their committees have with the Commission.
I do not grudge the European Parliament their privileges in this respect. I retain an affection for the European Parliament but, of course, it has changed a good deal since the days of my membership. It has changed in one very significant respect, in that the links between national Parliaments and the European Parliament are now more tenuous and less effective than they were in those days. I see my noble friend Lady Elles nodding assent. I hasten to say that there continue to be some valuable links, not least in her charming person.
But we should be giving consideration—and this in the wider context, and not today—to strengthening those links in some of the ways she suggested just now, and certainly in getting a closer rapport between the members of the national Parliaments and the European Parliament, now that those links have weakened. The privileges of the European Parliament, which as I say I do not grudge them, are no substitute 509 for similar provisions in national Parliaments. On the contrary, they are a reinforcement of the need for us to have powers of scrutiny here, not perhaps on all fours, for the reason I have given, but certainly more effective than at the present time.
Therefore, I conclude by saying that my submissions in regard to vires, with special reference to Article 235, are endorsed by paragraph 26 of the report and my submissions in regard to scrutiny are endorsed by paragraph 72. I hope my noble friend the Minister will be able to tell us that they are also endorsed by Her Majesty's Government.
§ 7.56 p.m.
§ Viscount Dilhorne
My Lords, I propose to concentrate on those aspects of this report which seem to me to be of special concern for practising barristers and lawyers; in particular, the impact which the conclusion by the Community of international treaties can have on the law of the United Kingdom upon which barristers have to advise their clients. I shall be focusing on a very small part of this report—Part 3 in particular—which deals with the effect of the Community treaties on member states.
Under Article 5, which is in very strong terms, member states like the United Kingdom,shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the EEC Treaty or resulting from actions taken by the institutions of the Community.The text continues:They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this treaty.That is a very broad article, covering a number of activities binding on this country.
In the normal course of events, looking at the United Kingdom in connection with treaties negotiated by the United Kingdom, as we all know Parliament is normally asked by Her Majesty's Government to pass legislation needed to give effect to its treaties in terms of United Kingdom law. The rights and the obligations relating to private individuals which result from such treaties are contained in precise terms in easily identifiable and readily available legislation. Perhaps that is a view that may not be shared by my noble friends on the Front Bench or by noble Lords opposite. But suffice it for the moment to be there. The lawyer advising his client can find the law in a familiar form in this sort of legislation. He can ascertain how it is likely to affect his client's affairs, because the law is expressed in a form appropriate to regulate relations between different legal persons within the United Kingdom.
In contrast, treaties concluded by the Community can be given effect by specific legislative enactments, though in this case Community legislation, such as regulations or directives, may be enacted in place of United Kingdom legislation. The text of those regulations or directives is rather harder for the practitioner to understand than our own laws, but they do not present, so I understand, too insuperable a problem. But that is not the only way a treaty concluded by the Community can become law in the United Kingdom.
510 Perhaps I may now direct your Lordships' attention to the Select Committee's report at paragraph 39, on page 15, headed "Direct Effect". In part it states:Under a doctrine developed by the Court, certain provisions of treaties concluded by the Community can have direct legal effect in Member States, without the enactment of any implementing measures by the Community or the Member States".The doctrine applies to all the formal acts of the Community institutions and stems,from the notion that all the Community Treaties, legislative instruments and other formal acts of the Communities constitute a new legal order for the benefit of all citizens of the Community".It is that principle, which was established as long ago as 1963 by the European Court in the Van Gend en Loos case, to which the noble and learned Lord, Lord Templeman, referred at the beginning of the debate, which enables individuals in certain circumstances to rely directly on Community provisions and even, where necessary, to disregard conflicting provisions, perhaps hallowed by time, of their national law.
This doctrine of "directly applicable law" applies to treaties entered into, as we know, by the Communities because they are "formal acts" of the Community. There can therefore be provisions in a treaty concluded by the Community which, without any further enactment, create rights and obligations enforceable in the courts of the United Kingdom. An important consequence of this is that a practising lawyer can no longer, with confidence, advise his client solely on the basis of existing Community law or of existing United Kingdom legislation and case law. He must ascertain whether there is a relevant treaty in force which has been concluded by the Community; and if such a treaty is in existence he must then discover whether the relevant provisions of that treaty are of the kind that make "directly applicable law".
This begs the question: what makes a provision in such a treaty "directly applicable"? The European Courts have given an answer to this question, and that answer is given in paragraphs 39 and 40 of the report. The treaty provisions,must be clear and precise so that the rights and obligations arising from them can be recognised and identified with accuracy; they must require no further elaboration or implementation by an institution of the Community or by Member States in order to render them operative; and they must be unconditional, leaving no discretion to Community institutions or Member States".Paragraph 40 states that it must be clear from the context of the agreement that direct legal effects are intended and are required for the treaty to operate satisfactorily.
These tests are helpful, but the practising lawyer still faces difficult and serious problems. He needs to be aware of the existence of a legal instrument, a treaty. This is not of the kind he normally deals with since its terms govern the relationships between countries. He has to form a view, by applying the tests I have just recited, on the direct application of the terms of the treaty or at least some of them. This is not at all an easy task. The report at paragraph 42 recognises that such a doctrine introduces an element of uncertainty into the law of the member states which could produce unjust results. The position is aggravated by the fact that the directly applicable treaty provision may sometimes conflict with the United Kingdom's national legislation.
511 The lawyer therefore faces the difficult choice of advising his clients to comply with the law of the United Kingdom, or to disregard it and instead to rely upon a treaty provision which may overrule that law. I hope that I am not exaggerating the point (for it really should not be exaggerated) but the Select Committee report notes that the European Court has so far,only rarely accorded direct effects to treaty provisions",and then only to enable individuals to enforce the obligations undertaken by the state concerned under the treaty. I refer of course to treaties like Yaoundé and Lomé, to which my noble friend Lady Elles has already referred.
However, it remains to be seen whether this doctrine can be applied in relations between private individuals. Even if this doctrine applies only in relations between states and their subjects, it represents a serious problem for practising lawyers, and it seems to me to be appropriate to highlight the reservations expressed on it in the report. The report says at paragraph 42:It seems to the Committee that this doctrine of direct application of treaty provisions does not fit necessarily, or even comfortably, into a structure where the Community is the party to the treaty and the Member States are not themselves parties, but only bound by the treaty in consequence of membership of the Community. The Committee consider that it would be more satisfactory"——and I am sure it is undoubtedly true—for obligations always to be translated into specific Community or national law.Finally,the position would be markedly less satisfactory if the European Court were to hold provisions to be of direct application where they create rights and obligations between one citizen and another".It seems to me that it would not be unreasonable to express the emphatic hope that the European Court will never do so. The noble and learned Lord, Lord Templeman, in closing his address, said that some of us were ably assisted through the thicket. I was ably assisted, yet I still feel that I am in the midst of the thicket; but that is entirely my fault.
§ 8.8 p.m.
§ Lord Kennet
My Lords, I feel that I did not really know that the thicket was there until I read this report and having been in one move introduced to it by the report and taken at least three-quarters of the way through, I should like to start by expressing more than usual admiration for one of the products of the subcommittee of our European scrutiny committee.
The report in its modest way is not only important but is even almost sensational in the extraordinary clarity with which it sets out a matter which though not simple is equally not tremendously complex and which nobody really knew about. I do not know whether other former members of the European Parliament now present will share with me the feeling that I had on reading the report. I sat in that Parliament for many months and years and tried to see the wood for the trees. I did not find it at all easy to do so. That was no doubt more by my fault than by the fault of any institution which was seeking to blindfold me. Now, thanks to the report, it is a great deal easier to see just what is happening. I believe that the report and also the speech of the noble and learned Lord, 512 Lord Templeman, in introducing the debate, are material to put on the bookshelf quite close to one's left ear, to turn to on future occasions of doubt and perplexity.
I wish to mention two minor points before the major one. On the question of confidentiality, the report, and the noble and learned Lord, Lord Templeman, and other noble Lords, have said that they want this Parliament to be fully informed of what the Community is up to in its treaty-making function within the bounds of confidentiality. The report then uses some rather generous phrases about that, implying that if a matter is declared to be confidential, then it need not be reported to the parliament—at least not on the first of the two occasions when a report is made.
It seems to me that it should not be too difficult to report the mere fact of the intention to open a negotiation with some third country to national parliaments. Let us suppose that the Commission and the Council thought it would be a good idea to have, say, a fisheries agreement with Mongolia. There can be nothing confidential in revealing to the French, British, German, etc, parliaments that they think that such is desirable and even the reasons why they think such is desirable—or even in revealing—shall we say?—that they propose to go about it by trying to negotiate catch quotas, rights of access to certain stocks, and so on and so forth. There is nothing confidential there. What would be confidential would be what they proposed to ask for and what they proposed to settle for if they could not get what they asked for.
One could reveal everything that was of political significance or of major economic significance while yet retaining the negotiating details in a way that is done normally by every government in the world towards its own parliament. So I hope that our Government and other governments will not be too overawed by the necessity of preserving European confidentiality in such communications, which we must increasingly expect. The purpose of my remark is to endorse what the report says about that matter but not to worry too much about the confidentiality aspect.
The noble and learned Lord, Lord Denning, introduced what is perhaps the hottest case of matters that fall between the two treaty-making stools of the Community and the member nations at the moment—or soon will be. I speak of the international convention on the Law of the Sea. We know little about it in this country; but we know that the Council of Ministers of the Community have discussed whether or not the Community as such should sign, accept and ratify that convention. If they do so, it will be on behalf of their member states, as we have been discussing all evening. They would do that only in respect of those areas of the convention where they have competence. Britain has not ratified; we have declared our unwillingness to ratify the convention on the Law of the Sea. What happens if the Community does so? I hope that it may be possible for the Minister of State to say a word about that matter this evening.
We have been hearing—and the report makes it rather clear—that the action of the Community would 513 override our own national unwillingness to ratify the convention and would make us parties to that convention, at least in certain respects. How will that look on international legal paper? Can one take a pair of scissors to a United Nations convention and chop out certain parts that one has been made to ratify willy-nilly by a regional, quasi-supranational organisation such as the Community or not? If not, then what does happen?
Politically, I hope very much that the Community will ratify that convention in so far as it is capable, and that the Government will, without too much bad grace, accept the decision of the larger democratic Community of which it is part and will join the rest of the civilised world, the rest of their partners in the Community, the rest of their fellow members in the OECD, and the rest of their fellow members of the Commonwealth—make the best of a bad job, and accept that important international convention.
I come now to my major point. What is at stake here and what should we worry about? I believe that we are too much used by now to dividing along the lines of Europeanist or nationalist and saying that we must be careful not to infringe the time-honoured powers of this Parliament in Westminster, or that we must hurry up and pass as much as possible from this Parliament, which, however time-honoured, is only national, to the new Continent-wide Parliament in Strasbourg.
I do not think that that matters very much. There is a far greater principle at stake—that is, democracy itself. It seems to me that by far the greatest danger lying in those competing competences is the danger that a given area shall fall to executive decision without any democratic control at all and fall between two stools—between Westminster and Strasbourg. There are some hair-raising examples given in the report of cases where that has very nearly happened. There are other examples—less hair-raising perhaps—where it has happened.
To remind ourselves of the potentialities of irresponsible executive action that lie within the machinery of the European Community, it is enough to remember that about 10 years ago a couple of Italian bureaucrats with the Commission were on holiday in Italy. They looked down on a crowded beach and said, "If Europe can't do something about the disgusting state of our beaches, then it does not deserve our membership of it." So they drafted a Commission Directive to say that nowhere on the coasts of the European Community should there be found at any time of the day or night more than 15 persons for every 100 metres of beach.
Those bureaucrats were very pleased with themselves and introduced that Directive, and they took it a certain distance before anybody got around to pointing out that such a Directive was hardly necessary between Cape Wrath and Wick; and was hardly possible anywhere; and that it was in any case beyond ridicule. It seems absurd to mention such a case, but there are others of a more sophisticated kind always in the pipeline of the Commission. I was amazed in the European Parliament to catch sight of them flashing past; they were almost always sat upon.
I believe that what should guide us and Members of all Parliaments, both national and European, is the 514 fear that by any action we take, by any negligence of which we are guilty, we may enlarge the possibility of irresponsible executive action and reduce the area of elective democratic control.
I would say to those in the Council of Ministers, and through them to the Commission—if they ever read the House of Lords Hansard, which I have reason to believe many of them do—that the more they in the Council and the Commission seek to keep the European Parliament at arm's length and to deny it a de facto increase in its powers and influence, the more they make it inevitable that the national parliaments will wake up through national reports—I hope as good as this one—to the fact that there is an area between the two stools; and the more national parliaments will try to regain national control of areas that are at present under European control but are not democratic, on the grounds that there is no democratic control. They will be justified in trying to do so. If they do so, they will simply de-Europeanise the situation to that extent. They will turn it into national fractions once again, with all the reinforced authority of an assembly that has regained a lost power as opposed to that of an assembly that is seeking to gain the corresponding power for the first time. That could be a sinister development for those who want to see more and more pass into the European bucket.
Therefore, I again congratulate all the members of the sub-committee, and of the European Committee, on this outstandingly good report, in a good run of reports. I hope that the Government will, above all, pay attention to ensuring that democracy comes in somewhere.
§ 8.20 p.m.
§ Lord Cledwyn of Penrhos
My Lords, may I first of all congratulate the noble and learned Lord, Lord Templeman, and the other noble Lords who sit on Sub-Committee E, for this most impressive report. The House is also grateful to the noble and learned Lord for his admirable opening speech, which gave us a clear exposition of the problems involved in this study.
We have had a most interesting and important debate, with informed speeches from all noble Lords who have taken part. I knew that there was a problem, I knew vaguely that a problem existed; but, like the noble Lord, Lord Kennet, as I read the report I became more and more aware of its crucial importance. In the arguments which have gone on since the 1960s about the Common Market the central theme has always been national sovereignty and the extent to which this is encroached upon in various ways by our membership of the Community. I think we all accepted that a measure of sovereignty had to be conceded, but we were also concerned to ensure that where this happened we knew precisely what was involved and precisely what we were conceding, nationally. By "we" I mean, of course, the British public in general and the Parliament of the United Kingdom in particular. This report goes to the heart of that argument because, as the noble and learned Lord has so lucidly explained, the Community has the power to negotiate and conclude treaties with countries outside the Common Market. This so-called 515 external competence is extensive, as Appendix 4 on page 35 of the report demonstrates in detail.
The committee makes many telling points which the Government will, I am sure, consider very carefully. For example, it says that the negotiations conducted by the Community have dealt with matters for which there was no specific provision in the Treaty of Rome. The committee says that these treaties negotiated by the Community have far-reaching consequences for this country and other member states, upon which they are binding, and that sometimes they become law here and elsewhere without further enactment of Community or national legislation.
Finally, if the Community has exercised this external competence then that area, that subject covered by the treaty, is not one in which the United Kingdom or any other member state can thereafter conduct any independent negotiations. Most of the treaties under discussion, as we see from the report, are concerned with trade of one kind or another. As a trading nation all this is, therefore, obviously of considerable importance to the United Kingdom.
Because it alerts us to these developments and their implications for the United Kingdom we warmly welcome this report. I think it may well be one of the most important of all the reports published by the European Communities Committee of this House. It is also very timely in view of the accession of Spain and Portugal, and also the debates about the Luxembourg reform proposals now going on.
The legal authority of the Community is growing significantly, but it is growing unobtrusively and it is vital that Parliament should be aware, step by step, of what changes are taking place. The committee is in no doubt, and makes that clear in plain language in paragraph 72. I quote briefly from that paragraph:The Committee consider that the current machinery for Parliamentary scrutiny is inadequate in relation to treaty-making by the Community. There is no effective democratic control".That is what the committee of this House says. It continues:The influence which Parliament can bring to bear is less than that which it has on international negotiations undertaken by Her Majesty's Government, and the opportunities for scrutiny afforded to Parliament are less than those offered to the European Parliament".That is the judgment of the committee.
We are all sorry that the chairman of our Select Committee on the Communities, my noble friend Lady Llewelyn-Davies, is unable to be here today. We are extremely sorry to hear that she is unwell, and we wish her a speedy recovery and an early return to the House. I know that this is an area in which she is most interested. We are grateful to my noble friend Lady Serota for her excellent speech, dealing with Part V of the report, delivered on behalf of my noble friend. I shall come to some of the points made by my noble friend in due course.
I noted that the noble and learned Lord referred to the Ponsonby Rule. As he said, it is of considerable interest for more than one reason. As far back as 1924 the need to bring Parliament more effectively into the treaty-making process was debated in another place when the Treaty of Peace (Turkey) Bill, which arose out of the Treaty of Lausanne, was before Parliament. 516 The Minister who spoke in the debate on the Second Reading of the Bill and who enunciated the rule which bears his name was, as the noble and learned Lord said, Mr. Arthur Ponsonby. In the debate Mr. Ponsonby said:It has been the declared policy of the Labour Party for some years past to strengthen the control of Parliament over the conclusion of international treaties and agreements".—[Official Report, Commons, 1/4/24: col. 2001.]Erskine May, as we have already been reminded, defined the Ponsonby Rule as one whereby when a treaty requires ratification,the Government does not usually proceed with ratification until a period of 21 days has elapsed from the date on which the text of such a treaty was laid before Parliament by Her Majesty's Command".As the noble and learned Lord said, Mr. Arthur Ponsonby was the grandfather of the Opposition Chief Whip, who sustains me and many others in this House, including, I think, the Government Chief Whip, from time to time.
The argument advanced over the years is that parliamentary scrutiny cannot be improved because it would breach confidentiality—a point made by several speakers. I am glad that the committee decided not to accept that argument in its entirety. It deals with this on pages 24 and 25 of the report, and it compares treaty negotiations by the United Kingdom Government and by the Community. It makes the point of which we are well aware that:There is no direct parliamentary involvement in the formal conclusion of treaties by the United Kingdom".The committee then goes on to emphasise that parliamentary consent has to be invoked in several practical ways. In other words, we are far better covered in our national Parliament than we are—with respect to the noble Baroness, Lady Elles—in the European Parliament. These points are dealt with in paragraphs 69 and 70 of the report.
Paragraph 70 makes an important distinction; namely, that whereas for national treaties ministerial responsibility to Parliament extends to the negotiations as well as to the conclusions, for Community treaties it applies only to Ministers' conduct when the Council takes decisions on the negotiation or conclusion of the treaty. In paragraph 70 on page 25 they say:Ultimately Parliament's opinion is decisive where a treaty negotiated by Her Majesty's Government will affect internal United Kingdom law; on Community treaties … Parliament can only exert some indirect influence".The point is clear. Democratic control is inevitably more remote in the conduct of Community affairs, and in the case of external competence it is made even more remote by the manner in which treaties are handled. In my view this is unsatisfactory and the Government must look urgently at the development, as otherwise we may have bureaucrats controlling our destinies. That has not happened thus far, but that is the danger.
Further, on the question of confidentiality we should carefully note paragraph 71 of the report, where we are informed:Members of the European Parliament told the Committee that there has been no problem in preserving the confidentiality of this information"—that is, information passed by the Council to a committee of the European Parliament. I see no 517 reason whatsoever why that precise information should not be disclosed on the same basis to a committee of the British Parliament.
The whole Community treaty-making process is dealt with in some detail in Part 4 of the report. The noble Baroness, Lady Elles, to whom we all listened with great respect because of her long experience of the European Parliament, dealt with these procedures in some detail, and we are grateful to her. I think that the point to note is that only in the final stages does the European Parliament have the chance to scrutinise the treaties. It may be said that it is the same here in the United Kingdom, but surely this is not so, since if Parliament protests against a United Kingdom negotiated treaty it can be changed, because only two countries are involved. In the case of the European Community treaties, first 10 and now 12 countries are involved, which is a very different kettle of fish.
Further, as paragraph 39 makes plain, Community treaties have direct effect, which is a point of the utmost significance—
§ Baroness Elles
My Lords, I thank the noble Lord for allowing me to intervene on this point. I think that, as regards the information given to the European Parliament, there is an ongoing process from the time that the negotiations are opened by the Commission until the signing of the treaty. So to my knowledge the relevant committee of the European Parliament is kept informed of progress at regular intervals. I am not sure whether that point was fully apparent from the paragraph which the noble Lord read out.
§ Lord Cledwyn of Penrhos
My Lords, I am much obliged to the noble Baroness, and so, I am sure, is the House, for that additional explanation. Of course, that makes it all the more necessary for the British Parliament to be kept informed—or an appropriate committee of the British Parliament, because the noble Baroness, Lady Elles, referred to information being passed to a committee of the European Parliament and not to the Parliament itself.
I was referring to Community treaties having a direct effect and I think this term is extremely important. The effects are immediate and we are stuck with them, whether we like them or not. In my view this is a significant development and I hope that the Minister will tell us the Government's view about it. Direct effect in relation to individuals can have unpredictable ramifications and we need a clear statement from the Government. I think this was the point stressed by the noble and learned Lord, Lord Denning, and the noble Lord, Lord Beloff, when they spoke. I believe that a relevant case is pending before the court at the present time and I hope that the judgment there will help to clarify the position.
The problem assumes an even greater significance when we look at paragraph 27 of the report, where it says:the Committee find it difficult to identify any clear limit to the possible extent of the Community's external competence".My own attitude to the Community has always been one of general support, but I also think that the Community must learn to walk before it can run. The 518 great danger is that practices may develop and precedents may be established unobtrusively and without the full appreciation of the peoples and parliaments of the member states. We do not like that sort of thing happening in this country and we have resisted it throughout the centuries. Why therefore should we accept it as a fait accompli now that we are members of the Community? I do not see the necessity for it at all.
In her speech my noble friend Lady Serota asked a crucial question about the devising of adequate machinery. I agree with her that it seems essential that some parliamentary machinery is devised to ensure that the negotiating mandate is reviewed at a much earlier stage, and that a power of amendment is part of that mandate. I had the impression that this was one of the points which was stressed by the noble Lord, Lord Broxbourne. A proposal may be perfectly respectable, but we must be able to challenge the Community's competence to deal with it and we must be able to decide whether we wish to surrender irrevocably that particular area of competence.
All in all, we have a report with profound implications for the future of this country and for its democratic procedures. We may be told that we are too sensitive, that now that we are in the Community we must embrace these developments and make the most of them, and that we must make our proper contribution through democratically elected members such as the noble Baroness, Lady Elles.
There is a great deal in that argument which is difficult to resist, but in my view we must also be careful not to move too rapidly. I am prepared to go along with the noble Baroness when I am satisfied that the democratic base is secure. The lesson of history is that eternal vigilance is required to secure the democratic base. On this question of external competence I have very considerable doubts that the interests of this country are entirely safeguarded at the present time. In thanking the noble and learned Lord and his committee once again, I urge the Government to heed the warnings of their report.
§ 8.37 p.m.
§ The Minister of State, Foreign and Commonwealth Office (Baroness Young)
My Lords, as is only to be expected, we have had a very good debate this evening. The subject of the Select Committee's report is important, though I must say that I agreed with the noble and learned Lord, Lord Templeman, when he said at the start that the subject he described was a hard nut to crack.
Right at the beginning of my remarks I should like to say that the Government welcome this opportunity to respond to the Select Committee's extremely well researched and comprehensive report, produced under the chairmanship of the noble and learned Lord, Lord Templeman. The extent of the Community's powers and the way in which they are exercised can have a profound effect on the rights and obligations of United Kingdom citizens. It is therefore right that your Lordships' House should take an interest in the Community's powers with regard to external agreements. The Government welcome the willingness of the Select Committee to tackle this important and complex subject.
519 It is right that the Select Committee in its report does not aim to question the extent of the Community's powers. Those powers derive from the Community treaties, which fall to be interpreted by the European Court of Justice. The United Kingdom is party to those treaties, which implies acknowledging those powers. That is a central consequence of Community membership which is not at issue. It does mean that the scope for questioning the extent of Community powers is very limited.
The committee has given us a comprehensive description of the Community's powers with regard to external agreements and drawn attention to the consequences of their exercise. This in itself is no mean achievement—a fact referred to by almost every noble Lord who spoke in the debate—as Community case law on the subject is developing rapidly. The Select Committee has, however, applied itself to the task with its customary thoroughness, taking evidence from a wide variety of sources, and its report has proved to be a valuable re-examination of Community competence. It has been very carefully studied throughout Whitehall.
Before responding to the individual conclusions which are summarised on pages 26 to 28 of the report, it may help if I remind your Lordships of the legal powers under which the Community is able to enter into international commitments, either in the company of one or more member states or on its own. Generally speaking, the Community participates in international agreements wherever these agreements concern matters wholly or partly within the competence of the Community. Matters fall within Community competence where the Community treaties confer such competence, either expressly or by implication. All other matters fall within the competence of the member states.
The EEC Treaty confers express treaty-making powers on the Community in two areas. The first is the common commercial policy which is dealt with under Articles 113 and 114 of the EEC Treaty. These include wide-ranging agreements, such as the trade agreements with Norway and Sweden and other countries of the European free trade area. The second is association agreements between the Community and one or more third countries or an international organisation for which express powers are provided in Article 238. These include the important agreements with Mediterranean countries such as Morocco and Egypt.
The European Court of Justice has ruled that treaty-making powers are not confined to matters covered by the treaty articles that I have mentioned. They may be implied from the existence of internal rules laid down, for example, in Council directives and regulations. The case which gave rise to the ruling involved drivers' hours. There was already internal Community legislation, and the proposal was to have an agreement with other states on the same subject. The court held that the implied power for the Community to enter into treaties existed whenever (a) the Community had laid down common rules to give effect to common policies and (b) it became necessary to conclude external agreements relating to the subject matter of those rules.
520 In such cases, it is for the Community and not the member states to conclude treaties affecting those rules. The reason for this is that it cannot be right for member states to agree on common rules to give effect to a common internal policy and then to undermine that policy by subscribing to international obligations which may contradict or conflict with the agreed rules. These ground rules are explained in greater detail in the Select Committee's report.
Certain witnesses in evidence to the committee argued that Articles 100 and 235 of the EEC Treaty could grant external competence to negotiate with third countries on any matters falling within the objectives of the Community, even when these matters have not been the subject of internal Community rules. That was a point to which the noble and learned Lord, Lord Templeman, referred. The court's case law on this matter is not entirely clear. However, the Government fully share the committee's view that in practice it will rarely be appropriate to exercise external competence under Article 235 without first adopting internal rules. If there is no need for internal rules to govern the operation of the common market, it is difficult to envisage circumstances in which it will be necessary to conclude an external agreement in order to attain one of the objectives of the Community.
I turn now to paragraphs 28 to 31 which cover competence deriving from non-binding agreements. The Select Committee also points out in its report that there are different views on the extent to which the Community can assume competence by virtue of its involvement with internationally agreed resolutions or recommendations and similar non-binding agreements. If the Community were to assume competence in this way, the powers of member states would, of course, be correspondingly reduced. Indeed, the Commission has gone further and argued in evidence that member states may not act in a way which might hamper the future development of agreements on the subject in question.
This is a grey area. It is clear that it is not open to a member state to enter into a political undertaking that runs counter to an existing Community obligation. But the Government take the view that, in general, only a subsequent legal agreement is capable of "affecting" (to use the court's expression) an earlier agreement. The Government therefore generally endorse the committee's conclusion on this point. It should, however, be emphasised that only the court can provide a definitive interpretation of the law in this area.
It will be clear from what I have said that the Government fully endorse the committee's view that it is essential that the exclusive nature of the Community's competence should be clearly understood by all those involved in negotiations concerning the Community's external agreements. The possible impact of such agreements on the powers of the member states is most carefully examined when the Government consider proposals for the initiation of negotiations and throughout the course of such negotiations.
In each case where an extension of Community competence is involved, we consider whether it is right that the activity in question should be carried out at 521 Community level rather than at national level. Arising from the point raised by my noble friend Lord Colville, perhaps I may say that I am confident that as a result of the debate the Government will be even more thorough in that consideration. In many, if not most, cases this will be quite appropriate and to the general advantage, including that of the United Kingdom; but in a few it may clearly not be, and the Government will firmly oppose the relevant provisions. I think that it is fair to say that we have something of a reputation among our Community partners for examining these questions very closely.
I turn now to paragraphs 39 to 43 of the report dealing with the doctrine of direct effect. Again this was one of the points raised by the noble and learned Lord, Lord Templeman, and by the noble Lord, Lord Cledwyn. In its case law, the European Court of Justice has held that certain provisions of an agreement between the Community and a third state might, in principle, be directly effective in the courts of member states. An example is the EEC agreement with Portugal which applied before Portuguese accession to the EEC. This contained a provision for a lower duty on port wine, and the court held (in the Kupferberg case) that an importer could rely on this provision alone, after conclusion of the agreement, to claim the lower rate of duty. At present the doctrine is confined to provisions imposing obligations only on a state. The Government agree with the Select Committee that there are dangers in any further development of this concept. There could be considerable uncertainty in the law if one individual in a dispute with another individual were able to call in aid the provisions of an international agreement.
The Government also share the committee's view that in order to avoid any doubt, obligations entered into under international agreements should, wherever possible, be transformed by legislation into explicit Community or national law. It must, however, be acknowledged that the practice of recognising direct legislative effect for international agreements is widespread in other member states and, indeed, is the practice in the United States. It was my noble friend Lord Beloff who referred to the United States, and I mention the United States only because it in fact recognises direct effect for treaties and not in any way in connection with its federal system.
Up to now I have been able to agree with all of the Select Committee's conclusions. I must now turn to a point on which the Government and the Select Committee are not entirely at one. The committee considers that in order to avoid uncertainty an attempt should be made to identify which matters covered by a "mixed" agreement fall within Community competence and which fall to the member states. An example of such a "mixed" agreement is that between the European Community and its member states on the one hand and Turkey on the other, concluded in 1963. It covers subjects beyond the scope of the European Community treaties.
The Government acknowledge that this argument has considerable attractions in principle. But, in practice, as the committee recognises, treaties tend not to be drawn up with internal Community distinctions in mind, and the respective responsibilities of the Community and its member states may not always be 522 capable of precise definition. It may therefore be difficult to identify where the division lies, not least because the respective responsibilities of the Community and the member states may evolve as time goes on. It has not, therefore, been the practice for a precise distinction to be made.
Other states associated with the Community's external agreements have generally been content that the Community and its member states will between them implement the obligations incumbent upon them. Few problems arise as regards the preparation and presentation of the Community position in negotiations since it is the normal practice for member states to co-ordinate their positions on matters both within and outside Community competence.
It is therefore extremely doubtful whether the Commission and our Community partners would agree that it was necessary systematically to draft statements about Community competence. Indeed, any attempts to do so would not necessarily lead to an outcome which was desired by the United Kingdom. Moreover, internal debates in the Community on competence could well delay progress in negotiations and lead to the Community missing opportunities on the substance. I am sure that your Lordships will agree that these are cogent arguments and that what might be desirable in principle may not in practice achieve the right results.
I should like to say a word about the way in which the Council's powers to adopt Commission proposals relating to the initiation of negotiations and the conclusion of agreements are exercised. Many of your Lordships referred to this. As the Select Committee's report points out, the EEC Treaty is not entirely clear about the majority required for certain decisions of this type. For example, in the field of transport policy, Article 75 provides for internal rules to be adopted by qualified majority but does not mention external agreements. The legal services of the Commission and the Council have adopted differing views. The Government generally agree with the Select Committee that the most sensible solution is that the majority required for the opening of negotiations should be the same as that required for their conclusion and that this, in turn, should be the same as that required for the enactment of internal rules. In practice, of course, it is normal for the Council to attempt to reach unanimous decisions on the negotiation or conclusion of agreements.
Perhaps I might refer at this time specifically to the point raised by the noble Lord, Lord Kennet, on the United Nations Law of the Sea Conference. The United Kingdom and the Federal Republic of Germany have not signed the convention. The European Economic Community has signed. But the director general in the legal service of the Commission, in evidence, said that action by the Community would require unanimity. Action by the Community is only possible in fields under its competence. Many topics in the United Nations Law of the Sea Convention are within national competence.
I turn now to the powers of the European Parliament. The Select Committee heard in evidence that, in areas where consultation of the European Parliament is mandatory, the Parliament had sought to increase its influence over Council decisions by 523 declining to provide an opinion until the Commission agrees to take on board its views on the proposal in question. The court has indeed held in a case relating to isoglucose, a product similar to sugar, that a particular regulation was invalid because the opinion of the Parliament had not been received. But the Government fully agree that attempts to take full advantage of the ruling to create for the European Parliament an effective right to veto have no foundation in Community law. The Government believe, moreover, that this practice has not resulted in any delays to Council decisions on external agreements which have been harmful to Community or United Kingdom interests.
The Select Committee also considered the role of Orders in Council under Section 1(3) of the European Communities Act 1972 in the United Kingdom ratification procedures for external agreements entered into by the European Community. This was a point mentioned by my noble friend Lord Broxbourne. The committee concluded that parliamentary consideration of Section 1(3) orders should not be regarded as a substitute for normal scrutiny procedures on Commission proposals relating to the conclusion by the Community of international agreements. The Government agree that the two procedures serve quite different purposes. A council decision is necessary to enable the Community to conclude the agreement. The purpose of the Section 1(3) order on the other hand is to provide the powers to enable the United Kingdom to implement its obligations under the treaty. Commission proposals relating to the conclusion of external agreements by the Community are therefore deposited for scrutiny by Parliament, whether or not a Section 1(3) order is to be presented. In practice, however, as the Section 1(3) procedure requires an affirmative resolution in both Houses, it may sometimes make sense for all Community aspects to be taken into account during debate.
I turn to paragraphs 72 to 74 on parliamentary scrutiny. These were the paragraphs referred to, I believe, by almost every one of your Lordships who have taken part in the debate. The matter was raised by the noble and learned Lord, Lord Templeman, in opening, and by the noble Baroness. Lady Serota, who put the case quite forcefully on behalf of her noble friend Lady Llewelyn-Davies.
The last of the Select Committee's specific conclusions concerns the opportunities available to Parliament to influence the course of negotiations on external agreements to be entered into by the Community. The Select Committee considers that Parliament should be informed of Commission proposals relating to the initiation of negotiations in the same way as it is informed of proposals for other action by the Community, wherever this can be done by means which do not disclose confidential matter.
The reasons why Commission proposals for the initiation of negotiations are not at present submitted for scrutiny were set out in the Government's evidence to the committee. These documents contain the Commission's proposals concerning the instructions to be given to the Community's negotiators. In many cases they indicate not only the Community's initial 524 position but the margin of discretion which should, in the Commission's view, be given to the negotiators. In the case of a fisheries agreement, for example, the instruction might specify whether payment of a fee is to be offered and what reciprocal concessions will be insisted upon. They are, therefore, quite different in character to other proposals by the Commission and for this reason are not published in the Official Journal or communicated to the European Parliament. The sensitivity of these proposals is clear, as are the practical difficulties which could result for the Community's negotiators if their mandate were known beyond the responsible Ministers and officials in the governments of the member states. It therefore remains the Government's view that it would not be appropriate to submit these documents for scrutiny.
I should add that, following publication of the Select Committee's report, the Government sought the Commission's views on how the proposals in question should be handled. The Commission confirmed that they were to be treated as confidential documents. We have also inquired as to the practice in other member states. Our inquiries have shown that none of our partners submit the documents in question for parliamentary scrutiny and that it is most unlikely that they would agree to our doing so.
The Government have therefore considered very carefully whether it is feasible to make any other changes in the way in which Parliament is informed of external agreements under consideration by the Community. The Select Committee itself acknowledges that the possibilities open to the Government are limited by the need to preserve confidentiality—a point stressed by the noble Baroness, Lady Serotaand does not press for the transmission of classified material.
I should perhaps remind your Lordships that general accounts of our negotiating approach and objectives are already given—often in considerable detail—in debates, when Statements are made after meetings of the Council, and in response to parliamentary Questions. It is also always open to any Member of your Lordships' House or of another place who wishes to discuss a prospective negotiation to write to, or seek a meeting with, the responsible Minister. I believe that your Lordships will agree with me that these procedures work well in practice. I am, of course, always happy to meet any Member of your Lordships' House who wishes to discuss a particular negotiation.
I should not conclude without saying something about the outcome of the intergovernmental conference and the proposed amendments to the EEC Treaty. Your Lordships' House will, of course, have a full opportunity to consider these amendments in due course and I shall therefore confine myself to one or two general remarks.
The agreement reached in the intergovernmental conference at the end of last year represented a worthwhile step forward in the development of the Community. The changes which will be made to the EEC Treaty will strengthen the Community, and placing political co-operation on a treaty basis will usefully reinforce foreign policy co-ordination.
We have consistently pressed for the objectives now set by the conference: to complete the common 525 market by 1992; to speed up decision-taking; to strengthen co-operation in foreign policy; and to ensure that our efforts in research and development are geared to the exploitation of a growing market. We have agreed to procedural changes to improve consultation between the Council and the European Parliament. But these will not affect the balance between the institutions: the last word on all Community legislation will remain with the Council. This was a point to which my noble friend Lady Elles referred. I should add that in neither of the cases mentioned by my noble friend Lady Elles under Articles 237 and 238 will the European Parliament acquire powers at the expense of national parliaments.
The outcome of the intergovernmental conference should improve the speed and effectiveness of Community decision-taking, particularly in matters affecting the internal market. Unanimity has been explicitly maintained for all decisions on taxation, the free movement of persons and the rights and interests of employees. We also retained the right to take national action where required to protect public, animal and plant health.
The results of the intergovernmental conference are still subject to general reserves entered by Italy and Denmark. I hope very much that these reserves can be lifted as soon as possible so that the texts can be finalised, signed and submitted to national parliaments for approval.
I hope that I have dealt with all the conclusions set out in the Select Committee's report. I conclude by saying that, although I have not been able to agree with all those conclusions, I think that it will be clear that the Select Committee's report with its thorough analysis of the current state of Community law will become an invaluable work of reference for future years.
§ Lord Cledwyn of Penrhos
My Lords, before the noble Baroness resumes her seat, may I put one important matter? The noble Baroness has made a full and detailed speech for which we are extremely grateful. But she has not moved an inch in the direction of the committee or any of the recommendations that it makes. For example, Paragraph 84 criticised the lack of adequate machinery. The answer by the noble Baroness to that was to say that nothing more can be done.
My noble friend Lady Serota suggested that there might be a meeting between the noble Baroness and the chairman of the Select Committee on the European Communities in this House to discuss the devising of new machinery which might improve matters. The noble Broness made no reference to that.
I appreciate that the noble Baroness may not be in a position to make a firm commitment tonight, but can the noble Baroness say that she is prepared to discuss these matters with my noble friend Lady Llewelyn-Davies, the chairman of the EC Committee, so that a start can be made to looking at the possibilities of improving the machinery?
What happens in other countries is no business of ours. What we are concerned with is the democratic process in this country. If the noble Baroness were to 526 say that she would convey this to her right honourable friend, then this House, I feel sure, would be extremely grateful.
§ Baroness Young
My Lords, I am very sorry that the noble Lord, Lord Cledwyn, should feel that I have not dealt adequately with any point in the committee's report. As I indicated to the noble Lord, we agree with almost every point that has been made.
There is this very important matter, and I recognise clearly, from having listened to the whole of the debate, the strength of feeling on this matter in your Lordships' House, which is reflected in what the committee has said. I have tried to explain why the Government have taken the view that they have. I shall of course read very carefully what has been said when Hansard is published and I shall consider this matter, particularly the quite specific request that has been made for a meeting to discuss whether or not there are some further measures which we could take.
As I am sure the House will appreciate, I could not undertake anything further than that point. But I hope in saying this that others of your Lordships will look carefully at what I have said on this point about the very many opportunities which are presented to our Parliament for looking at treaties at an early stage, particularly the numbers of times when there is a full statement to Parliament after a Council meeting. That of course usually indicates the first stages of a treaty, when there are opportunities to comment and all the other opportunities which can be taken.
However, I shall certainly consider what the noble Lord, Lord Cledwyn, has said. I shall also look again at what the noble Baroness, Lady Serota, has said on this matter. As I said, I cannot give any guarantees that there is anything further that I can add to this. But I shall certainly look at the suggestion which has been made.
§ 9.6 p.m.
§ Lord Templeman
My Lords, on behalf of the Select Committee I should like to express gratification for the contributions which have been made to this debate. Those contributions have endorsed the decision which was made by the Select Committee to investigate this very difficult but important question; and have endorsed all the main conclusions of the Select Committee with the exception of the scrutiny proposals, to which I shall refer in a moment.
In general, may I say that I thoroughly agree with the Minister's opening remarks, which went to the point that we must operate Community law through Community institutions; and that the place to do that, when questions of competence arise, is through the Council and through our representatives on the Council. That must be coupled with the acceptance by the noble Baroness of the expression used by the noble Lord, Lord Broxbourne, who said that we must be watchful, and that departments must be watchful, so that Council representatives are fully instructed on this question of competence.
Your Lordships will echo the expression of regret by the noble Baroness, Lady Serota, on the absence of the noble Baroness, Lady Llewelyn-Davies, and the reason for her absence. We all know the great interest she takes in all the affairs of the Select Committee. It 527 was on the question of scrutiny that the noble Baroness was most concerned.
The noble Lord, Lord Banks, was inclined to leave questions to the competence of the council and its legal advisers. With great respect, the Community think otherwise. They think that member states should, in the first place, consider any proposals from the point of view of competence; they should then consider the implications of the proposals with regard to competence, and should then turn to the merits. To consider the merits of a proposal first of all and then to consider competence at the end of the day is really to stand the proper procedure on its head.
The noble Viscount, Lord Colville of Culross, was I think surprised at the extent of the implied powers and parallelism. But as the noble Baroness said, and the Minister said—and I would agree—one must now simply apply this through the machinery of Community law. The noble and learned Lord, Lord Denning, with his usual lucidity and clarity, explained the effect of direct applicability and the dangers involved in that.
The noble Baroness, Lady Elles, stressed the views of the committee on the helpfulness of witnesses from the Community and from the department. She gave us an illuminating account of the role of the European Parliament with which I think we are all sympathetic. The only doubt cast by the committee was on the use of their powers so as to create a power of veto.
The noble Lord, Lord Beloff, was rather wary of what he called the expansion of powers by Community institutions, which, as I have said, we take the view can only be dealt with by our own adherence to those communications. He referred to himself as a token lay person. Those members of the committee who served with him would not accept his self-deprecating remarks. Most of his observations are far more penetrating than he would lead the House to believe.
The noble Lord, Lord Broxbourne, has experience on these matters both as a Member of the United Kingdom Parliament and as a former member of the European Parliament. He stressed the importance of exclusivity, and used the expression, which I have taken from him, of the necessity for being watchful. The noble Viscount, Lord Dilhorne, referred to the practical difficulties confronting lawyers where Community law is, or is not, directly applicable. Of course, the difficulties of lawyers are compounded by the difficulties of their lay clients when they receive advice from lawyers who are cast in the middle of the Community thickets.
The noble Lord, Lord Kennet, had a point to make on confidentiality. He stressed a point, on which I would venture to disagree with the Minister; namely, the cloak of confidentiality and sensitivity. It is a negative attitude to allow this cloak to be cast round all negotiations simply because in some of them there may be sensitive or confidential matters. I think all the Committee would ask is that the problem should be looked at in general and in particular to see whether it is really necessary to have a cloak or blanket over the whole scheme, or whether there could not be some method whereby we were informed of the principles in advance.
528 Certainly the committee's understanding is that there is a defect there at the moment; that we do not get sufficient warning of the opening negotiations when it comes to international treaties. We do not get the same warning as we do with other Community proposals. We would respectfully suggest that that could be looked at again.
The noble Lord, Lord Cledwyn of Penrhos, I think agreed with all the proposals made by the Select Committee. So far as concerns the Minister, I went through cheerfully ticking off all our conclusions. I have only two question marks. One is that she frankly said—and I can understand the reasons—that the Government did not wholly agree with the proposal that the Community and member-state area should be defined in a treaty. My recollection is that in the Law of the Sea, or certainly in one of the conventions, the other negotiating parties have positively insisted that the Community and the member states shall, in an annexe, set out what they conceive to be their different functions and their different responsibilities. For my part, I see the full force of the case made by the Minister on the recommendations in paragraph 80 and I would not dissent.
That leaves only one bone of contention, which is the scrutiny proposals in paragraph 84, the last conclusion of the Select Committee. Again, I see the force of the Government's attitude, and I see the difficulty where confidential matters are intertwined. But where there is a will there is a way, and the fact that European countries are not, if I may put it this way, quite as interested in competence matters as we are in this country should not deter us, if we think the point is a good one, from trying to segregate that which is confidential from that which ought to be placed before Parliament at the earliest opportunity. I do not think that in principle there is anything between the committee and the Minister, and I hope I may be permitted to make those comments on the view that she has expressed.
I conclude by thanking all those who have contributed to this debate and in particular all those members of the committee both those who have taken part and those who have not. We all worked together over a period of six months and with some 180 pages of evidence gratefully and thankfully have come to a conclusion.
§ On Question, Motion agreed to.
§ House adjourned at a quarter past nine o'clock.