Clause 2

§ The Chairman

I have a short statement which I shall read to the Committee before we commence our proceedings. I have received representations about Amendment No. 429, which is not included in my provisional list of Amendments selected. After giving the matter careful consideration I am prepared to call this Amendment in an amended form: namely, in page 4, line 25, at end add:

1. (7) Nothing in the foregoing subsections shall enable regulations to be made allocating the representation of the Houses of Parliament at the European Parliament which representation shall only be effected in accordance with the following subsection.
2. (8) The lists of names of the proposed representatives of the Houses of Parliament at the European Parliament shall be laid in draft before, and shall be subject to the approval of, the House of Commons.

This Amendment will be taken after we have disposed of Amendment No. 253.

I have also decided to allow Amendment No. 349 to be discussed with Amendment No. 253.

§ Mr. J. Enoch Powell (Wolverhampton, South-West)

Sir Robert, as a result of what you have just said there will, or can, be more than one debate falling within a section of the time allotted under the guillotine Motion.

Might I bring to your attention the impropriety of any steps which might be taken to preclude members of the Committee both from discussing the Amendments and coming to a decision in the Lobby on the Amendments that you have thought it proper to call? I express the hope that there will be no repetition 1272 of the disgraceful scene which disfigured the last proceedings upon this Bill.

§ Mr. Ronald King Murray (Edinburgh, Leith)

On behalf of the Opposition, we share the feelings of the right hon. Member for Wolverhampton, South-West (Mr. Powell). We deplore the conduct of the Government's spokesman at the last sitting of the Committee.

§ The Chairman

In answer to the right hon. Member for Wolverhampton, South-West (Mr. Powell) and the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray), as far as I am concerned nothing irregular took place. I am bound by the terms of the business Motion of the House, and upon that I have to act. There is nothing I can see on which I could be criticised on this matter. No doubt what the right hon. Gentleman and hon. and learned Gentleman have said will be noted.

§ Mr. Ronald King Murray

I beg to move Amendment No. 420, in page 3, line 37, leave out from beginning to 'except' in line 43.

Perhaps, having expressed certain words of disquiet a moment ago, I may, on behalf of the Opposition, thank you, Sir Robert, for the added debates you have enabled to take place in the Committee by reconsideration of your provisional selection of Amendments.

It is my understanding that we are to discuss along with Amendment No. 420 which I have moved, Amendment 182, in page 3, line 40, leave out from 'Parliament' to end of line 46.

Amendment No. 313, in line 40, leave out from 'Parliament' to 'but' in line 43.

Amendment No. 8, in line 41, after 'shall', insert 'unless the contrary appears'. And Amendment No. 183, in line 46, at end insert:

1. (5) Except as may be expressly provided by any Act passed after this Act, all Acts of Parliament (including Acts of the Parliament of Northern Ireland) and all Orders in Council and all instruments made in the exercise of any statutory power or duty, including all orders, rules, regulations and other subordinate instruments, in force upon the entry date or passed after the entry date, shall be construed and have effect subject to the provisions of subsection (1) of this section.
2. (6) Except as expressly provided by any enactment to which subsection (5) of this section applies, if in any legal proceedings a con- 1273 flict arises between any such enactment and any provisions of the Treaties or any Regulations made there under or any Decisions of the European Court, the court seized of the dispute in which such conflict arises shall, in resolving such conflict, have regard to the provisions of subsection (5) of this section, and may declare that any such enactment or part of such an enactment is contrary to the Treaties or Regulations or Decisions, and of no effect.

These Amendments have one thing in common, although Amendment No. 183 is rather different in some of its objectives. They have in common that they all unanimously agree that the wording as it stands in subsection (4) will not do. The extent of its obscurity may be in dispute but not the fact of the obscurity.

Amendment No. 183 may have less support on both sides of the Committee because it is rather more restrictive in its objective than the other Amendments. However, Amendment No. 8, which is, clearly, a minor Amendment, clarifies what is otherwise an obscure passage. For the remainder, Amendments Nos. 420, 182 and 313 have common objectives. Indeed, they focus on precisely the same point.

At the outset it is important that the Committee sees what subsection (4) apparently sets out to do. It apparently—Isay this with some diffidence because it is far from clear and one is charting unknown seas in these lines of the Bill—seeks to set limits upon the powers conferred in subsection (2). That is the first objective.

The second objective seems to be to enact residual safeguards for parliamentary control as are contained in Schedule 2.

Clearly, 1 must be careful what I say about the quality of these safeguards. That must be a matter which the Committee will have to consider when we come to debate Schedule 2. However, the apparently innocent purpose of subsection (4), which I have sought to outline, is belied by three circumstances. The first is the qualifications on the powers conferred by subsection (2). If they relate to subsection (2), as they innocently appear to do, and if they have an innocent and praiseworthy objective—namely, to apply even limited parliamentary safeguards to the powers conferred in subsection (2)—why are they not part of subsection (2)? If that is to what they relate and that alone, they 1274 should be part of subsection (2). If they are not part of subsection (2) they should be adjacent to it and contained in the following subsection.

Far from that being the case, there is the intervention of subsection (3). That is one of the most important pivots of the whole Bill dealing with the basic structure of finance in the event of our joining the Community.

One must assume that there is some purpose in putting the contents of this subsection after that vitally important provision. If the Committee will pause for a moment and consider the matter, the point I have just made about the position of this so-called safeguard limiting the powers of subsection (2) is such an obvious one that the rôle in which it is cast in subsection (4) must put the motives of the Government in so placing it in an oblique and sinister light.

The second circumstance to which I draw attention is the wording of the first four lines of subsection (4) down to the word "Parliament" in line 40. These words seem to extend rather than to restrict the scope of the already far-reaching powers of subsection (2). It is difficult to understand what those words are intended to do, if not that.

I commend Amendment No. 420 to the Committee because it is the only Amendment which seeks to delete these words entirely. If these words were taken away. I understand that the normal operation of law, and particularly the vires rule, would prevent delegated legislation from wholesale repeal of Acts of Parliament. The normal operation of law would prevent the provisions of subsection (2) from wholesale repeal by delegated legislation.

To put the point in a sharper way, normally secondary legislation must rely upon primary legislation. It would be a unique and unusual departure to do what these lines apparently do; namely, give the power to delegated or secondary legislation wholesale to repeal primary legislation. This seems a unique departure. It seems to be done, as it were, by way of afterthought in a subsection which is apparently innocent and has a praiseworthy purpose. In other words, the Government appear to contemplate with equanimity a wholly new constitutional change; and, far from doing it openly, they have done it obliquely and with subterfuge.

1275 Thirdly, andworst—last, but by no means least—we have the mysterious passage at lines 40 to 43, which is the subject of Amendment No. 313, which, appropriately enough, has the support of both sides of the Committee. This is indeed an enigma wrapped in mystery. The passage does not appear to be innocent. Indeed, guilty subterfuge is written all over it. It is tucked away in the middle of some pretty opaque and turgid prose along with its parenthetical accomplice, at the end of Clause 3(1), lines 29 to 32,which are in brackets. These accomplices together seem to be intended to impose by a side wind or afterthought the supremacy of European jurisprudence over the law of this country. It looks like an afterthought, but I wonder whether it is. It can only bean afterthought or subterfuge. There is no alternative.

The Committee may be reluctant to take my word for it, but perhaps it will consider what Professor Wade said in a learned article published in The Times some weeks ago which has been mentioned in earlier debates. The article, by Professor H. W. R. Wade, was called "The judges' dilemma". I think it is an appropriate title. Dealing with many topics of importance in connection with the Bill, Professor Wade, touching upon the contents of subsection (4), says: The present Bill can and does make community law prevail over existing Acts of Parliament. It also expressly attempts to make it prevail over future Acts". I pause to quote the words in lines 40 to 43: any enactment passed or to be passed, other than one contained in this Part of this Act, shall be construed and have effect subject to the foregoing provisions of this section". On the face of it, this is a provision seeking to bind future Parliaments.

Professor Wade continues: It also expressly attempts to make it prevail over future Acts, by a few words in clause 2(4)"— those are the words which I have just quoted— awkwardly wedged in the middle of a long sentence about other things, as well as by some words coyly lurking in brackets in clause 3(1). But here it falls foul of the classical principle of Parliamentary sovereignty, which ordains that no Parliament can bind its successors. Where two Acts of Parliament conflict, the later Act must always prevail. 1276 It is in that faith that the Government have from time to time said that the sovereignty of the House of Commons is not affected by joining the Community. Whether that faith is justified is another matter.

The learned author goes on to say: nothing that the present Bill can say can make any difference. So at worst for the Government these words are inept because nothing that the present Bill can say can make any difference. if Parliament truly cannot bind its successors.

§ Mr. Powell

I wonder why the hon. and learned Member is so sure that the words after "but" in line 43 are innocent. They appear to have the effect of suggesting that a future Act of Parliament could limit the safeguard included in Schedule 2. Indeed, if they do not have that meaning and effect it is difficult to see what they have.

§ Mr. Murray

I take the right hon. Gentleman's point. I was prepared to sacrifice the lesser evil for the greater good.

There is also the possibility that stronger safeguards could be put in. It is on that sort of position that this Amendment was drafted. It is not without dangers. But the dangers which I foresee are much greater dangers. We would want to have some protection against those.

I would commend Amendment No. 420 to the Committee. Amendment No. 313 has support from both sides of the Committee. On any view—and perhaps the right hon. Gentleman will agree with me—Amendment No. 313 goes right to the evil heart of the matter.

§ Sir Derek Walker-Smith (Hertfordshire, East)

The Amendment in my name is Amendment No. 313, to which the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) has just referred. It is concerned with the second aspect of the matter to which he directed attention. He rightly said it is a very important one in constitutional principle.

When we were considering subsection (1) of Clause 2 we saw that it constitutes a revolutionary reversal of cherished constitutional doctrine with its self-enacting regulations and its commitment to the future dictates of executive bodies not subject to parliamentary control.

That subsection constitutes a heavy and unprecedented blow to the sovereignty of Parliament in that it impinges on two of its basic ingredients; that is to say, that Parliament should be the sole law-making authority in this country and that its authority should be unfettered. Where such a blow has been inflicted it might be thought that the recipient is so punch drunk as barely to notice in his bruised and battered state any further blows which may be rained upon him.

1279 Nevertheless we cannot, in my view, as Members of the House of Commons, as representatives in our generation of the parliamentary tradition, as heirs to its rights and trustees for their preservation, be insensitive to the further blows contained in this subsection. It may not be as injurious as subsection (1). It hardly could be. Nevertheless its effect is to curtail the rights of Parliament with a severity which could be unthinkable if we had not already considered subsection (1).

Subsection (4) is in its own way just as revolutionary as subsection (1) in that it impinges on this other cherished constitutional principle which Professor H. W. R. Wade has defined as the classic principle of parliamentary sovereignty which ordains that no parliament can bind its successors. It is perhaps a minor inconvenience when discussing matters of constitutional law and practice in this country that there are, in fact, two Professor Wades: Professor E. C. S. Wade of Cambridge, our latter-day Dicey, and Professor H. W. R. Wade—late of Cambridge; now of Oxford—a very eminent younger figure.

The quotations given by the hon and learned Gentleman came from the excellent article of Professor H. W. R. Wade in The Timesof 18th April. That doctrine is impinged on by these subsections and by the few words in subsection (4) which briefly, boldly and brazenly attempt to make the provisions of the Act prevail in perpetuity over the provisions of any future Act which future Parliaments may in their wisdom seek to enact. It is those words which my Amendment No. 313 would seek to omit, and rightly so, because no Parliament can arrogate to itself the right to prejudice future needs and future circumstances which are necessarily unknown and necessarily unpredictable at the time of enactment. To do so would be illogical as well as presumptious since the indispensable ingredient of law-making is the preservation of that flexibility which allows to succeeding generations the right to adapt to their needs, the right to repair here and renew there, to extend and modify as necessary, the solid and serviceable structure of our laws.

§ Sir Gilbert Longden (Hertfordshire, South-West)

Is my right hon. and 1280 learned Friend saying that if these words were to be left they would override the sovereign right of Parliament to override its predecessors?

§ Sir D. Walker-Smith

That is what they seek to do. Whether they can do it or not is something to which I am coming in my argument. But that is what on the face of it they seek to do. To do that, to deny to future legislators that right, or to seek to deny it, is to place a clear fetter on the sovereignty of Parliament and impose an ineradicable weakness on our law-making machinery. That is what subsection (4), on the face of it at any rate, seeks to do. In so doing it acts contrary to our basic concept of parliamentary sovereignty.

It may be asked where we find the formulation in our law of this classic principle to which Professor Wade refers, the concept that Parliament cannot bind its successors. In a sense we do not find it. Having no written constitution in this country, we do not formulate our constitutional principles in that way. We have no need to in this case because we can pluck this principle straight from the basic characteristics of parliamentary sovereignty as practised over the generations.

The principle that Parliament cannot bind its successors derives directly from the first of three traits of parliamentary sovereignty in this country as identified by Dicey: that is to say, the power of the legislature to alter any law, fundamental or otherwise, as freely and in the same manner as other laws. It is part of what Bryce in his Studies in History and Jurisprudence called "the flexibility of the British constitution". Dicey said: Every part of it can be expanded, curtailed, amended or abolished with equal ease. "Can be"? But no longer if this subsection is passed and given effect to. If the Clause were passed, those great masters of constitutional law and practice could not use the same terms today. They would have to substitute "could formerly have been expanded, curtailed, amended or abolished, but now no more" since they would operate within the limitations of these words. We can imagine that it would be a matter of some grief to them to see so radical and retrograde an alteration in their definition of the constitutional position.

1281 Parliament can legislate successfully only if its power is unfettered. It cannot do so on the basis of a constitutional mortmain, with the dead hand of a Parliament of the past laid upon the future so as to prevent enactments in accordance with contemporary needs and current sentiment.

§ Mr. Percy Grieve (Solihull)

Does not my right hon. and learned Friend agree that, whilst the first part of what he says may well be right—that is to say, that implied variation by the effect of the Clause on subsequent legislation would not prevail—the power of Parliament expressly to vary it could not for one moment be said to lie within the construction of the Clause?

§ Sir D. Walker-Smith

My hon. and learned Friend is on the point that my hon. Friend the Member for Hertfordshire, South-East (Sir Gilbert Longden) was on earlier—thatis to say, the effect of this—and I am coming to that. What is clear is that the intention, the will and the desire of these words is to do this unconstitutional thing. There can be no doubt about it. It is expressed clearly in the words we have already heard from Professor Wade's article: It… that is, the Bill, and the Clause— …also expressly attempts to make it prevail over future Acts, by a few words in Clause 2(4)…". Those are the words to which I am 1282 addressing myself, and which my Amendment would omit.

There can be no doubt what the Clause seeks to do. It seeks to bind future Parliaments, to fetter their jurisdiction and to breach the principle which has always animated the relationship between earlier and succeeding Parliaments.

§ Mr. Ian Percival (Southport)

rose—

§ Sir D. Walker-Smith

I am coming to the question which I think my hon. and learned Friend wishes to ask. That is the question whether, in fact, so desiring, they can do so.

§ Mr. Percival

In what way do these words fetter the action of any future Parliament? If, as I think, they do not fetter a future Parliament in any way, why should one read into them an intention to do so?

§ Sir D. Walker-Smith

An Act of Parliament abhors a vacuum just as much nature. If my hon. and learned Friend's contention is that the words are meaningless, that they effect nothing, why are we asked to enact them? We are a workshop. Our business and concern are with the fabric of the law, and we have no right to put into it things which can have no effect. With great respect to my hon. and learned Friends, if those are the best arguments for the words they can put forward, they are not very substantial ones.

It may be that my hon. and learned Friends are discharging the rôle familiar in mediaeval tourneys and in the bull ring; that they are put out in advance for a little light skirmishing and we may hear more substantial points from my hon. and learned Friend the Solicitor-General. But I am a little sceptical, because I share the view of Professor Wade and the hon. and learned Member for Leith as to the dilemma that is here imposed.

We have to ask ourselves the question: that being manifestly the intention and the desire of these words, can what is sought to be done be done? Has Parliament the power—

§ Mr. Percival

rose—

§ Sir D. Walker-Smith

My hon. and learned Friend rises when I am halfway between semi-colons. If he will restrain 1283 his impatience for a moment I will certainly give way.

The question we have to pose is: has Parliament the power, even if it has the will, to bind successor Parliaments? There again we have this trenchant answer on the authority of Professor Wade that it has not. The hon. and learned Member for Leith read out the words: The one thing that our legally omnipotent Parliament cannot do is to fetter its own continuing sovereignty over our law". The hon. and learned Gentleman did not read out these words: It is therefore inherent in the whole problem that nothing that the present Bill can say can make any difference. If that be so, there is no point in these words and we are being asked in effect to enact a nullity. We are being asked—does my hon. and learned Friend wish to make an intervention?

§ Mr. Percival

I wondered whether my right hon. and learned Friend was coming to a colon.

§ Sir D. Walker-Smith

I will come to an exclamation mark in order to give way to my hon. and learned Friend.

§ Mr. Percival

I only want to correct what my right hon. and learned Friend said about what I said. I am not saying that the words have no effect. As long as they stand and are not qualified by any later enactment they are effective in relation to that enactment. I was saying that they do not in any way fetter the discretion of the House to say in respect of any future enactment that these words do not apply to it. They are not any fetter on the discretion of future Parliaments.

§ Sir D. Walker-Smith

I repeat, if they are not that they are nothing. We do not have to say in an Act of Parliament that regard shall be had to that Act in the construction of legislation in the courts, but that is subject to the fact that in any conflict with a later Act the later Act will prevail. It is that which the Clause seeks to get round. It is necessary to get round that because of the obligations imposed upon us by the Treaty of Rome.

There is no mystery in the matter. The only mystery, as Professor Wade has 1284 correctly identified, is that the drafting is obscure, or at any rate it is guarded—

§ Mr. Raphael Tuck (Watford)

Woolly!

§ Sir D. Walker-Smith

"Woolly" is a term which I was hoping to avoid. Of course it is, because it has to do something which is inherently repugnant to people brought up in the British parliamentary tradition. That is the key to the subsection. There is no mystery about it when we analyse it.

It is right that this no doubt would be a nullity if a subsequent Parliament did not choose to follow it. If a subsequent Parliament, like Samson of old, shakes off the fetters and insists on passing an Act contrary to Clause 2—what then? Which Act of the sovereign Parliament is to prevail—Clause 2(4) or the subsequent Act, which, according to any normal constitutional doctrine, should prevail? That would be for the courts of the day to decide. Although the courts cannot modify an Act of Parliament where the intention of Parliament is clear, where there is doubt they must resolve it.

In attempting to resolve the doubt in which they would find themselves since, as Professor Wade has said, they would find themselves in a dilemma. They could uphold the words of subsection (4) at the expense of our constitutional doctrine that Parliament cannot bind its successors and that the later Act must prevail. There again, Professor Wade has put the position clearly in The Times: Either the Bill's provision about future Acts is meaningless in any case of real conflict"— that seems to be the argument so far as I can interpret it— or else the Government is assuming that there will be a constitutional revolution of just the kind which it is at pains to deny. The fact is that Clause 2(4) seeks to spell out and give express statutory effect to something which is implicit in entry to the Community on the terms of the Treaty of Rome, namely, the denial to future Parliaments of an essential part of our sovereignty. Under the terms of the Treaty of Rome, the commitment is in perpetuity without right of determination. To accept such a commitment is, in honour if not in law, to fetter a future Parliament. To accept it is, as I have been saying over the last decade or more, to impose an inescapable and unwelcome 1285 dilemma. To withdraw, or seek to withdraw, after ratification will be a breach of an international obligation, but to deny to future Parliaments the right to withdraw will be a breach of constitutional principle.

That is the painful dilemma in which entry involves us. It is a classic dilemma of Sir Lancelot whose …honour rooted in dishonour stood, And faith unfaithful kept him falsely true. If Parliament does so, if it knowingly accepts the dilemma and its implications, it may be that the dilemma can be resolved only by successive Parliaments voluntarily accepting a restraint that cannot lawfully be imposed—refraining, in the interests of international obligation and the faith of the pledged word, from exercising the right open to them in principle, for open to them in theory and principle it undoubtedly would be. There is no constitutional method of taking it from them. Parliament can accept the restraint as a matter of policy or for the upholding of the sanctity of contract, but it cannot be imposed upon it. Yet the formal imposition of such a restraint, expressly fettering the rights of a future Parliament, is precisely what the subsection seeks to do—if it seeks to do anything at all, and we must assume that it does.

As such it is in my view misconceived in law, wrong in principle, revolutionary in effect and perhaps inoperable in practice. Therefore, I cannot, consonant with my duty to Parliament, consent to its enactment in the Bill.

§ Mr. Denzil Davies (Llanelly)

I also wish to take up the middle words of the subsection, which will have such a revolutionary effect on our constitutional practice.

The first words of subsection (4) appear to give not only to Ministers but also to Government Departments the power to make law subject to the so-called safeguards in Schedule 2—the power to make law in areas which normally, according to our constitution, one would expect to be made by Act of Parliament. That power is, as I understand it, given to Ministers and Government Departments to make law by means of Statutory 1286 Instruments and Orders in Council. I take this to be the effect of the first few words of the subsection. Where normally the law would be made by Statute it shall, subject to subsection (2), be made by negative Resolution; under the subsection a negative Resolution is sufficient to create new law.

We all know that a negative Resolution in the House becomes law without any debate at all, unless somebody prays against it. Even if there is a prayer against it, it is difficult, especially for back benchers, to find time to debate the matter. The effect of the first part of subsection (4)is to transfer power to the Executive to create law different from, and in a manner different from, what would normally be expected in this House. There would be no debate in the House, the matter would not go through a Committee, and would not go through the whole procedure of statutory enactment. Such law will now be able to be created by negative Resolution.

It is a salutary thought that under subsection (4) the head of a Government Department, by negative Resolution, could create a criminal offence punishable by imprisonment of up to two years. Schedule 2, which governs the whole package, refers only to criminal offences punishable by imprisonment in excess of two years. We are giving the Executive power to create a criminal offence involving imprisonment of up to two years by means of a negative Resolution which may never be debated in this House. Many of us feel that this is the kind of power which should not be given by the House to this Executive, or any Executive in future, whatever Government or party is in power. This is what the debate is all about.

The Government do not have to introduce provisions of this kind to subscribe to and join the Common Market. Article 189 of the Treaty of Rome does not require member States to enforce directives in this manner. The first part of subsection (4) and subsection (2) relate mainly to the enforcement of directives, because the regulations come under Clause 2(1) and are self-executing or self-enacting. We are concerned mainly about directives. Article 189 leaves it free to member States to determine their own methods as to how the directives are to 1287 be translated into the law of the land of member countries.

There is no need for this procedure in order to take away, as subsection (4) seems to do, the right of Parliament to enforce a directive which may be of substantial importance. That right does not need to be taken from Parliament and conferred on the Executive by means of affirmative or negative Resolution. The Government in the opening words of the subsection are going much further than even the Treaty of Rome requires.

My reading of the Treaty of Rome leads me to believe that the people who framed the treaty were not greatly enamoured of democracy or of parliamentary representation. If they had been conscious of these matters they would never have drafted Article 189 in the way they did. But the present Government are prepared to go further by arrogating to themselves and to the Executive as much power as possible. They are determined to emasculate Parliament.

At least the opening words of the subsection fall in place when one reads them with subsection (2). However it is the middle words of the subsection, "any enactment" in line 40 down to the word "section" in line 43, which have the greater constitutional implication and, on the face of it, seem to have little connection with subsection (4) and subsection (2). Again one wonders why these words have been inserted in this position. They do not seems to fit in with the other words of the subsection.

First, one must look at the word "enactment". My hon. and learned Friend the Member for Edinburgh, Leith (Mr. Ronald King Murray) said that in his view "enactment" might not be confined to an Act of Parliament. I do not know about that. There is authority for saying that "enactment" means a Statute but does not mean an Order in Council or Statutory Instrument. But, whatever the word means, clearly it means a Statute. It does not mean a Statute passed pursuant to the safeguards contained in Schedule 2. The draftsman has said specifically "any enactment". As a result of Schedule 2, we know that certain directives will have to be made binding in this country by means of Acts of Parliament.

1288 However, the word "enactment" in subsection (4) goes much further. The draftsman says deliberately "any enactment", and he is referring to any future Statute passed in this House. Whatever else "enactment" means, he is referring to any Statute passed in future. Any Statute by implication will have effect subject to the provisions of the European Communities Act. Next year's Finance Act, whatever its provisions, whether they inadvertently or deliberately transgress any directives emanating from Brussels or any articles of the Treaty of Rome, will have effect subject to the provisions of this subsection of the European Communities Act.

The subsection is trying to fetter future Parliaments. The words are clear. The only question is why the draftsman tried to slip them into subsection (4), which on the face of it looks fairly innocuous. The draftsman is attempting to do something revolutionary. He is trying to prevent a future Parliament passing legislation which may be contrary to any Community law.

The next and more difficult question is whether the draftsman can succeed in doing that, and, assuming that we accept it, how far we shall fetter future Parliaments. I do not want to go into the argument about parliamentary sovereignty, but I have always understood the concept of sovereignty ultimately to be a legal one. Parliament can do what it likes. It can pass any Statute that it likes. But ultimately the question is whether the courts enforce that Statute. As I understand it, that is the true doctrine on which parliamentary sovereignty is based. It is a legal concept and not necessarily a political one.

If a later Act is passed which is contrary to any regulations emanating from Brussels under Clause 2(1), will that later Act prevail in our courts over this Act, given the words contained in the middle of subsection (4)? In other words, has the draftsman been able to create a fundamental Statute or an entrenched Clause which cannot be modified or changed by a future Parliament? In my opinion, if a future Act is passed which is contrary to certain directives, regulations or Articles of the treaty, the courts will enforce the present legislation as opposed to that later Act.

1289 We ought to remember that we are not concerned solely with the rules of statutory interpretation adopted by the House of Lords. Looking further ahead to Clause 3(1), all these matters are to be determined according to principles laid down by the European Court. They will not be determined according to the principles which have been known to apply in English law. The highest court which will decide whether the later Act shall be enforced in preference to the present legislation will not be our House of Lords. That court will not be the supreme authority in these matters. In the end, this difficult question will be decided by the European Court. It is the European Court which will decide whether the later Act is to apply over the former. If we look at the case law of the European Court, there is little doubt that that court, by temperament quite apart from any of its previous decisions, will find in favour of the European Statute—in other words, this legislation—rather than any later attempt to overthrow it.

In respect of a future Statute which seeks to repeal part of the European Communities Act, given the new context in which we are operating and the fact that the European Court will be the final arbiter, I think that the draftsman has succeeded. If we pass this Clause, we shall fetter all future Parliaments in respect of a vast area of our law which is governed by the European Common Market.

The ultimate question is what happens if a future Statute decides to repeal the whole of Section 2(1). If we do that, that is the end of the matter, because the regulations cease to have effect. I do not presume to give an opinion, but I do not think that the answer is completely free from doubt. If it is, and the Government are happy that such a repeal would be effective in law, let the Solicitor-General tell us. The Government have said that there is no surrender of ultimate sovereignty. I believe that they have chosen the word "ultimate" deliberately. But let the Solicitor-General tell us, if a later Act seeks to repeal subsection (2), that the words of subsection (4) will not prevent that repeal from being effective.

As usual, this debate is not necessarily about joining the Common Market. It is about parliamentary control, about representative Government and about control 1290 in this House of any legislation which becomes binding on the British people. Subsection (4) is not necessary for joining the Common Market, and I believe that it is in the interests of the pro-Marketeers rather than in those of the anti-Marketeers to ensure that the Common Market has a base of democratic control. If it does not have that base and if that base does not come from member States, the Common Market will not work. Its institutions will break down.

The Government, from the point of view of self-interest and of wanting to see this policy succeed, will not wish to emasculate argument and to arrogate to the Executive the powers that they are seeking in subsection (4).

§ Mr. Powell

This subsection is an extremely instructive one. I do not say that it is either luminous or, without considerable study, illuminating. But a study of it is rewarding and will enlighten us as to the reality of what we are doing in the Clause.

In effect, there are three parts to the subsection. The first relates to subsection (2). It is the part of the subsection which qualifies, or rather, extends as far as possible, the effect of subsection (2). Then there is the middle passage, to which most of the debate has so far been directed. It will be noted that this passage does not refer especially to subsection (2); indeed, it has much more relevance to subsection (1). Finally, at the end, after the favourite punctuation mark of my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith); the semi-colon, we come back again to subsection (2), with a proviso affecting the Second Schedule.

I should like to take these three parts not in the order in which they stand in the Bill but first, the first part, then the end of the subsection, and finally the most important part, the central passage.

The first three lines extend as far as possible the power which can be exercised under subsection (2) by saying that, apart from the limitation in the Second Schedule, one can do anything of any extent which could be done by Act of Parliament. That takes us back over a great deal of ground which we have 1291 covered in previous debates. In the debates on Clause 1, we were anxious to secure if possible Amendments, but, if not, assurances from the Government, that matters of importance would in future be dealt with by legislation and not by Orders in Council. We were unsuccessful.

We then considered Clause 2, particularly subsection (2). There again, we were anxious that, so far as possible, the proper procedures of legislation should be used in order to make new law in this country. We protested, as the hon. Member for Llanelly (Mr. Denzil Davies) has just done, against the making of law of a major character, as could happen under subsection (2), merely by means of an Order in Council or a regulation.

My right hon. and learned Friend the Chancellor of the Duchy, in a long passage in the debate on 24th May, sought to allay our anxieties. He was speaking of the use of subsection (2) when he said: As new matters arise to be dealt with, the Government of the day will…have to decide whether to proceed by Statute…Nothing in the Bill prevents Parliament…from adopting what procedure it likes…". He went on, even more strongly: It must be left to the good sense of the Government of the day, bearing in mind that any Government is subject to the approval of the House. Finally, he said very emphatically: I cannot conceive of circumstances in which a future House of Commons would allow the Government arbitrarily to put into subordinate legislation what should be dealt with by statute."—[Official Report, 24th May, 1972; Vol. 837, c. 1505–6.] If the words in this subsection mean anything, they are a permission, and, therefore, an encouragement, to a future Administration to do exactly what my right hon. and learned Friend said was not the intention.

My right hon. and learned Friend said that he could not "conceive of circumstances" in which a future House of Commons would tolerate a Government putting into subordinate legislation what should be dealt with by Statute. Now, two allotted days in Committee later, he asks the House itself to insert words in the Bill which say, quite unnecessarily 1292 and superfluously, ex abundanti, that one can do under subsection (2) anything whatsoever of any extent that one could do by an Act of Parliament.

I am not accusing my right hon. and learned Friend of seeking to revoke his assurances; but what I wish to make clear to the Committee is the practical importance of this subsection if it passes unamended. It means that, in future, any Government will be able to come to the Dispatch Box with a regulation. When hon. Members say that it is not something that should be done by regulation, that there should be a Bill which can be amended, considered, and reconsidered—perhaps even in a Report stage, although that may have gone out of fashion by then—the Government will say "You have not considered Section 2(4) of the European Communities Act, 1972. That specifically provides that one can do anything under subsection (2) that one can do by Act of Parliament". One can almost write the Minister's speech for him. He would say: "What otherwise would be the point of those words? The Government are fulfilling the intentions of the House, and now hon. Members are inviting us to fly in the face of its deliberately expressed intention."

That is the effect of these words. They are not innocent or ineffective in a practical sense. Of course it can be argued that they are ineffective in the sense that they do not prevent a future Government from doing by Statute what they can do under subsection (2); but they are the most open invitation, which no Government could decline, to do by regulation or Order in Council things which should be done by Statute.

One can imagine the dialogues in the Legislation Committee of Cabinet between the Patronage Secretary and the Leader of the House and some Minister who perhaps had twinges of parliamentary conscience. When the Minister said that a matter was important enough to warrant legislation or that he was a little uneasy about doing it by regulation, the Patronage Secretary, well briefed, would turn up subsection (4) and ask what the point of it is if not to avoid the necessity of a Government ever having to do by Act of Parliament what they can do by regulation or Order in Council.

1293 Therefore, we have the Chancellor of the Duchy on our side. If he cannot conceive of a House of Commons which would allow these things to be done by Order in Council rather than by legislation, then he himself, now that the significance of this is pointed out, will be the first to support the Amendment and wish to remove these words, which are a standing inducement to a breach of the undertaking that he gave to the Committee.

So much for the first portion of this subsection, on which I think we shall have unanimity.

I come now to the last part, which is not strictly covered by the group of Amendments which we are considering. Nevertheless, I hope that you will agree, Sir Myer, that we should consider the subsection as a whole. For the interpretation of the parts specifically covered by the Amendment is appreciably helped by the words at the end of the subsection, after the word "but".

The Committee realises—though we shall be debating this in more detail later—that Schedule 2 contains the safeguards. Despite the words to which I have just been addressing myself, Schedule 2 as it stands prevents certain things from being done by Order in Council or by regulation under Clause 2 (2).

Obviously, under the doctrine of the unimpaired sovereignty of Parliament—my hon. and learned Friend the Member for Southport (Mr. Percival) and others will hasten to point this out—in a future Session of this Parliament, or a future Parliament, we can come back and amend the Second Schedule. So it was not necessary to include the words except as may be provided by any Act passed after this Act. I see that I have the assent of my hon. and learned Friend the Member for Sonuthport. Those are supererogatory words because without those words an Act passed "after this Act" could reduce or extend the safeguard contained in Schedule 2. Nevertheless, for some reason those words are there. This has been a very carefully considered Bill. The drafting has been gone over and over, I assume, with a fine-toothed comb. If there were no point in those words, long before the Bill came to be printed and 1294 presented to the House they would have been removed. I assume that they have some point. I assume that someone said, "It will be convenient in the future if we have got those words in." In what circumstances would it be convenient to have words in a Statute saying that one can alter Schedule 2 by a subsequent Act?

I now put the two cases I have in mind to my hon. and learned Friend the Solicitor-General. Was it the idea that the protection in Schedule 2 should be extended, or was it the idea that the protection in Schedule 2 should be reduced? Whoever drafted this or whoever agreed to this insertion had it in mind that it might well be desired to modify Schedule 2 and that it would be just as well, when that moment came, to be able to say to the House of Commons "This was expressly provided for in the parent Act by the words in Section 2(4)."I want to know in which direction it is anticipated that it may be desired to amend the effect of Schedule 2. Is it the idea of the Government—if so, we shall be very glad to hear it—that it may be desirable in future to strengthen Schedule 2, to take more and more matters out of the purview of Clause 2(2), so that more and more matters have to be dealt with by Act of Parliament? That is the effect of reducing the scope of Schedule 2. If that is the intention, that will be some relief to members of the Committee. But it is very difficult to square with the rest of this Clause an intention in the future to amend the Act in such a way as further to limit the scope of Clause 2(2).

I am afraid, therefore, it appears to me more probable that the only intention of those words is to make it easier than it otherwise would be to limit, reduce or abrogate altogether the protection in Schedule 2. I repeat—this will bring me to the last and central part of the subsection—that without those words it would still be possible to do it; but the words are there for a purpose. They are there in order to make it easier to do it, in order to have something to appeal to. I fear that the intention there is in accordance with the rest of the intention in this subsection, to open the way to a further limitation of the legislative processes of the House of Commons.

After all, one can see how it could happen. How inconvenient, especially 1295 with the progress of inflation, it might be to have such figures as a fine of more than £400". How inconvenient if in a few years' time we found we had to legislate just because a fine of over £400 was involved. How much better if the irritating and unnecessary limitation in paragraph 1(1)(d) of the Schedule could be removed. When that day came, the Minister in charge would point out that something of this sort was envisaged, because a pointer had been put in by the House of Commons in Clause 2(4) of the Bill.

5.15 p.m.

This leads us to the significance of the central portion of the subsection, which says any enactment passed or to be passed…shall…have effect subject"— here I substitute "subject to subsection (1)". [Interruption.] It does apply to the rest of the Clause as well but the business end is subsection (1). Putting this the other way round, it means that no enactment is to be made, or, if it is made, it is not to have effect, to the extent that it is in conflict with anything which happens as a result of Clause 2(1) or with any laws, etc., which are in force as a result of Clause 2(1).

I have a qualification to add to that. Here I come to meet my hon. Friends who have returned to the doctrine of the omni competence of Parliament, and I draw the opposite conclusion to that of the hon. Member for Llanelly in his last point. I think that an Act of Parliament which expressly said either that "Clause 2(4) shall not have effect for the purposes of this Act" or, "Notwithstanding anything in Clause 2(4) of the European Communities Act", would probably override this subsection as it stands. However, the practical effect is that unless a future Statute expressly amends for the purpose or expressly repeals this subsection, then, automatically and whether or not anybody knows it at the time when they are passing future legislation, it will be overridden by the consequences of Clause 2(1) or, indeed, of anything else in this Clause.

This is where one sees the importance in the debate of the Amendment tabled by my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke). My 1296 hon. and learned Friend the Member for Darwen, though he is a supporter of the principle of membership of the Community, considers it unsatisfactory that there should be a concealed conflict of jurisdiction, that there should be an avoidable unclarity in our law. If I may, for the purposes of my argument, anticipate what I think will be his, he says that as a result of this subsection there will often be an unresolved conflict between what the House of Commons may do and the consequences of Clause 2(1), and that it is better that we should know, here and now, where we stand. Indeed, this was the significance of the portion of the article by the learned professor quoted both by the hon. and learned Member for Edinburgh, Leith (Mr. Ronald King Murray) and by my right hon. and learned Friend for Hertfordshire, East, when they pointed to the fact that it would be the courts rather than the House of Commons which would be adjudicating in future upon the sovereignty of Parliament, because any such unresolved conflict would be thrown up to be dealt with either by the courts in this country or ultimately by the European Court. So I am with my hon. and learned Friend the Member for Darwen in this, when I say that we had better have it written onto the face of the Bill. If we are saying that Statutes passed by the House of Commons are to be overridden where they conflict with law coming into effect under Clause 2(1), let us say so and look it in the face.

But there is an even deeper sense in which these central words bring us up against the conflict between the Bill and the sovereignty of Parliament. The sovereignty of Parliament has been a theme running through these debates. I have no intention of being drawn into what I consider the arid area of disagreement between the right hon. Member for Manchester, Cheetham (Mr. Harold Lever) and some of his hon. Friends at earlier stages in our debates. Nobody disputes that there could be political circumstances in which the House would exercise its power—and if it would exercise it, could exercise it—to cancel this Act of Parliament or to alter any part of it. There always is, in a sense, albeit a contradiction in terms, a right of revolution. There is always a power to break an agreement if one can get away with doing so. In that sense, of course, though it is a sense devoid of practical content, 1297 the sovereignty of Parliament is unaffected and cannot be affected by this legislation. But we are not concerned with the theoretical effect; we are concerned with practice; we are concerned with what it will be possible for those who succeed us in this place to do, and with what it will be possible for them to do as a result of the form in which we are choosing to draw the Bill.

In membership of the EEC there is at any rate a potential practical conflict with the sovereignty of Parliament in that to be a member of a continuing and politically-developing economic community places upon all the members of that community constraints, however they discharge them, to behave in a common manner, even in partial disregard of local and national wishes. In that sense it is true that those who support entry, in this legislative form or any other, are deliberately accepting—indeed, are commending—an abrogation of the sovereignty of Parliament.

But, that admitted, I do not believe that these Amendments should be dealt with in that light. I believe they should be favourably considered by hon. and right hon. Members who are in favour of British membership of the Community. It is significant that in the group of Amendments we are discussing there is one which stands in the names of a number of hon. and right hon. Gentlemen opposite who have declared themselves in favour of the principle of British membership. Nevertheless, they tabled Amendment No. 8, because they baulked precisely at this part of the subsection.

It was not necessary that the House should be presented with this explicit expression of the overriding of a later Act of Parliament by the consequences of an earlier Act of Parliament. Subsection (4) is the consequence of what the Government chose to do in Clause 2(1). Subsection (4) is no more necessary than subsection (1) for the purposes of British membership of the European Community. The Government have admitted that there are alternatives to the method adopted in Clause 2(1). They have admitted that, on a whole series of matters which will be dealt with under Clause 2(1) and (2), they would have legislated as they are legislating in the later Clauses of the Bill. The practical 1298 point—and it is a point which I believe can and should draw together members from all parts of the Committee—is that if we were proceeding in this Bill by the alternative and proper legislative method subsection (4) would not be necessary.

If the changes which are to be brought about in our law were brought about as they are in the later Clauses, if the sort of Bill had been introduced which we understand was in the minds of right hon. and hon. Gentlemen of the Opposition, if the sort of Bill had been introduced which was specifically referred to as practicable by the Prime Minister when he wound up on Second Reading, then, of course, Clause 2 would not appear in its present form and we would not be seeking to give that legislation priority over subsequent legislation.

The Act of usurpation implicit in the form of Clause 2(1) is the cause of the usurpation explicit in Clause 2(4). We find, therefore, that we are criticising not the principle of membership of the Community but the manner in which it is proposed to achieve it. Once again, as we have said so often, the debate on these Amendments is not for or against the Community. It is for or against good parliamentary practice. It is for or against the rights and powers of this House. If the Bill had been in proper parliamentary form, it would have meant—and this is how it should be—that in future when new law has to be made as the Community develops, in each case the House of Commons would have to be called upon to consider what it was being asked to do. It would have had to take into account the effects that membership of the Community entailed; but it would have done so as a House of Commons and as a House of Parliament, and it would have done so as a House responsible to the electorate. We can still have that sort of Bill, the sort of Bill which upon any view we ought to have. The way to get it is to accept the Amendments.

§ Mr. Brynmor John (Pontypridd)

I believe the right hon. Member for Wolverhampton, South-West (Mr. Powell) was right to uncover the double threat to Parliament in the subsection. Not only is it a matter of the sovereignty of Parliament but it is also, in the first few lines of the subsection, a threat to the 1299 content of consideration by this Parliament; in other words, the way in which the Government lay before us their intention, and the scrutiny to which this Parliament can subject that evidence of intention. I believe that the inclination of any Executive will be irresistible to put it in a way which truncates parliamentary debate to the maximum.

If we needed any reassurance of that it is the extent to which the Government Front Bench has wriggled upon the question of a Report stage, refusing to adopt even the most reasonable and necessary Amendment in order to preserve its position intact so that it might not even have to sacrifice another couple of days on consideration of the Bill. With that precedent in mind, who can doubt that any future Executive will draw its legislation with the sign and call of the Patronage Secretary, in the way which is most convenient to it and not in a way which is most conducive to good order and good scrutiny by Parliament. That is the first way in which I believe the subsection poses a threat to Parliament.

The second way has already been mentioned. It concerns the inclusion in the subsection of any enactment which has been passed or will be passed; in other words, an attempt by the Government to fetter future Parliaments as to the type of legislation they may enact. Since most of our complaints on the Bill have been about the extreme brevity of our dis-cusssions and about the conciseness of the language involved, I would have thought the most absurd argument yet advanced by pro-Marketeers is that adduced by the interventions during the speech of the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith), that these words are used unnecessarily and that they are useless.

Whatever else is clear in the Bill, it is that the man who drafted it and the Solicitor-General did not include anything other than that which is strictly necessary to give effect to their intentions. Therefore, we can reject the argument that these words do not really mean anything. They mean precisely what they are intended to mean. They are an attempt to fetter, to bind, to limit the sovereignty of a future Parliament to give effect to its will in the climate of the time.

1300 As a convoy moves at the speed of its slowest ship, it is necessary to revert to the argument about sovereignty, which we have had many times but which some Conservative Members do not appear to have understood. There is a difference between sovereignty, the everyday customary exercise of sovereignty as it has been known to this Parliament, and ultimate sovereignty, which Ministers are careful to say remains to this country. Of course, ultimate sovereignty remains to this country. Ultimately Parliament may enact a Measure which sweeps away all the restrictions upon us. But that is merely the ultimate sovereignty, the ultimate power, to break with the Community. It is no other power, and it can and will be used only when this country believes it is no longer of advantage to be in the Common Market.

Short of that, all sorts of pressures will be put upon us. A future Parliament will be told "We know your case on this is right, but do not exercise the power in this instance because that will only rock the boat. See how many advantages we have from being members of the Community—the wider market, the dynamic", which may even have started by then. At all stages pressures will be put upon us as legislators not to exercise our sovereignty for fear that it will upset the balance, for fear that it will upset the international organisation into which we shall have gone. The real answer is that we shall retain the sovereignty of Parliament only so long as we do not choose to exercise it.

What was said earlier today was that no Parliament is completely fettered, that it can walk out of the Community and enact what it likes. There is a disease known as agrophobia, the fear of open spaces. Nothing binds the sufferer to the room in which he is other than the thought that there is something terrible beyond. At any moment he could open the door and walk the streets a free man, but because of his mental condition he chooses never to exercise that freedom.

If we enact the subsection, future legislators will have a sort of legislative agrophobia. They will have the theoretical possibility of exercising their power, but they will always be afraid to exercise it for fear of upsetting our colleagues, for fear of breaking the alliance. Unless we are prepared to do that we shall not 1301 exercise the power. The subsection, when it says passed or to be passed will bind future Parliaments, and it is idle for Conservative Members to pretend otherwise.

I diffidently part from the right hon. Member for Wolverhampton, South-West on the effect of overriding the subsection. Certainly I think that a future Act could expressly provide that the provisions of the subsection were not to take effect for that Act. But for the first time, as a result of our membership of the Common Market, we have a constitutional court which is set above Parliament, which is to consider whether any member State has in its own domestic legislation breached the Treaty of Rome, which alone is sacrosanct to that court. Therefore, whereas a Parliament may say "We shall not do that in a future Act", the European obligation would exist independently of the enactment.

In any event, as the Italian electricity case shows, domestic legislation which is in conflict with the Treaty of Rome will be interpreted by the European Court in such a way as to maintain the supremacy of that treaty. Therefore, whereas we could override the present intention of subsection (4), in effect the European Court would make sure we did not go too far.

The subsection says "subject to Schedule 2". We are given a great apparent concession by Schedule 2, which says that certain powers are excluded from the provisions of the subsection and cannot be imposed other than by enactment. Taxation and the power to create new criminal offences are among the matters covered. But there is power to create new criminal offences punishable by imprisonment of not more than two years or by a fine of not more than £200. That is a great breach of civil liberties. It is idle for the Solicitor-General to say, as he has in many debates, that the criminal law of this country will never be altered, that we are not derogating in any way from our criminal law. We have the imposition of criminal offences which carry fairly heavy penalties without the necessity of enactment in this House, with only the most cursory examination. Therefore, so far from being a concession, this is a way of giving the Executive a further power to affect 1302 people's lives and freedom in a way in which adequate consideration by the House is precluded.

It has been the boast of the House of Commons that on behalf of the freedom of subjects in this country it has traditionally exercised such a power. If that is to be given away it is no good presenting the provision to the Committee as if it is a triumph, an extra concession wrung from an unwilling organisation for the protection of the House. It is a derogation of the traditional powers of the House. Therefore, the Solicitor-General should immediately retract the suggestion that the criminal law is not being altered. European offences will take effect against subjects of this country with no more than the briefest scrutiny of the House, when we can bring such scrutiny out of an unwilling Government.

It would be much better to maintain the traditional way of bringing into existence obligations in this country by the passage of Acts of Parliament, which alone gives the House the adequate right not only to listen to general statements upon Second Reading but to give detailed consideration to a Measure in Committee. We should have had no idea of anything but a fraction of the meaning of the Bill before us but for the Committee stage. It is only since we began our detailed scrutiny in Committee that many of the most obscure points have emerged.

If the Government are truly of the mind that any future enactment can be put before the House freely, can stand on its own feet and be looked at honestly, they should abandon the shabby pretence in the subsection and go back to the traditional and still the best and most effective way of passing such obligations into our law; namely, that of enactment.

§ Mr. Charles Fletcher-Cooke (Darwen)

The shape of these debates is very odd. We have four, five, perhaps six speeches from anti-Marketeers to set one off. We then have a few nit-picking points by myself, who am enthusiastic for the cause but not so enthusiastic for the method. We then have another speech by an anti-Marketeer, and it is not until then that the young lions, or perhaps I should call them the young toreadors, behind me have a chance of getting to the meat.

§ Mr. Anthony Fell (Yarmouth)

I remind my hon. and learned Friend that 1303 there are no young toreadors for Amendment No. 8 on the benches opposite as far as I know.

§ Mr. Fletcher-Cooke

I am not attributing blame or cause or anything, just pointing to the fact, lest the public should get the impression that a five or six to one majority against the Bill prevails in this Committee.

I am disenchanted by some of the modalities, as we shall have to learn to call these things, in the Bill. I am in favour of subsection (4). I do not think that it is wrong. I just think that it is not enough and that in particular the middle passage is so short as to give the judges no guidance at all on what is going to be an extremely difficult task of conciliation and reconciliation. To say that this vast corpus of continental law …shall be construed and have effect… when it impinges upon the equally vast corpus of Commonwealth statute law, both as regards difficulties of time and as regards difficulties of place, is to my mind insufficient. It owes more to considerations of diplomacy than to considerations of law.

My Amendment No. 183 would bring the issue more specifically to a reality—the issue of the extent to which Acts of the House of Commons subsequent to regulations or decisions of the organs of the Community prevail over those regulations and decisions. It is a difficult problem, and I have sought to spell out the way it should be tackled—that is, that where an Act specifically says that it is flying in the face of Community regulations and decisions, the judges should be told that the Act is to prevail. I think that that is the sense of the Committee on both sides. However, it is where there is no such specific mention in an Act that I think the problem really arises—the problem of where, either by inadvertence or perhaps by cunning, the House of Commons has flown in the face of some Community decision or regulation. What is the poor judge to do then? Therefore I spell out in my Amendment that the judge is to observe the Community's decision. That I believe is the reality of the position.

Objection may be made to stating in express terms that the House of Commons may in future decide not to follow a 1304 decision or regulation of a Community organ on the ground that it is a very bad diplomatic thing for a country which is just going into the Community to make express provision for its coming out again. I follow the diplomatic objection to that, although it has less bearing after M. Lipkowski has said that he does not regard the Six as an organisation from which it is impossible to resign. It no longer seems so large a diplomatic blunder to put in such words as I suggest. However, wiser heads than mine object to it. But I would like to point out to the Government only two of the burdens and difficulties that are being placed upon our judiciary—and there are many more—by these small and innocuous words in lines 40 to 43 in subsection (4).

5.45 p.m.

A suggestion which has been canvassed today is that it is not so much the difficulty of the big bang—for example, the defence of the Community by the House, and I myself do not think there is any legal difficulty about that—as of the small day to day problems. What is the poor judge to do when he sees a subsequent Statute, accepted by both Houses of Parliament, assented to by the Sovereign and printed in the normal way with all that authority, which he thinks conflicts, and quite seriously conflicts—and he may not be able to reconcile the two or get out of the difficulty—with some decision, say, of the Commission or some regulation of the Community? Unless the guidance is spelt out stronger than the words, …shall be construed and have effect subject to the foregoing provisions of this section…", which is a very difficult and obscure formula, he is bound to take the plain words of the Statute and prefer them even when in my opinion he should not.

§ Mr. Powell

My hon. and learned Friend will also agree that such a Community law might be law made subsequently to a Statute.

§ Mr. Fletcher-Cooke

Certainly. I think the judge is in grave difficulty over both the previous law and the subsequent law.

It is not only a question of regulations. It is not only those strong instruments or regulations dealt with in subsection (1). The judge does not even know, for example, about directives which have not yet been translated into legislation by the 1305 House. It is generally assumed that until such directives have been translated into legislative form—whether by Order in Council or by Statute I do not pause to inquire—they have no effect on our courts. If that is right, it is totally contrary to the Belgian precedent. Ministerial acts of the Belgian Government, acts of a fairly fundamental kind, have been held by the Belgian courts to be null and void because they conflicted with directives which had not yet been translated into Belgian legislation but which nevertheless illustrated the policy of Community law.

What is the judge to do when such cases come before him in six months' time? This is a matter which our judges are going to have upon their shoulders very soon in the span of legal life. The Bill puts the burden clearly on the shoulders of the judges and gives them completely insufficient guidance on what to do.

My second point may be considered remote, although I think it is important. It concerns the execution of judgments. Very often the most important part of a judgment lies not so much in its being pronounced by the lips of a judge but in its execution—how it is to be carried out.

Here is an example of an occasion when the judges of this country will find themselves in great difficulties. The decisions—I am using that word in its technically correct sense, I think; that is, the judgments of the Council, of the Commission and of the European Court, which act inter partes; that is, are directed against an individual or corporation—are directly enforceable in member countries. That is in Article 187 of the Treaty of Rome as regards the Court and Article 192 of the Treaty as regards the Council or the Commission. The imposition of obligations on persons other than States may be in other forms of execution than pecuniary obligations. Hon. Members may know that in this country when there is a writ of execution it is possible to go to a judge and ask for modification. If the party is dead the personal representatives can go along; if the company is in liquidation all sorts of considerations apply. There is relief under the writ of fi fa. All sorts of things can be done even though there has been a writ of execution addressed to a particular person. 1306 Will a person seeking relief from a directly enforceable execution of the Luxembourg Court or of the Commission or the Council be entitled to go to a Queen's judge and ask for relief? What is the judge to do? Is he to say "No, I cannot give you relief because this is a European judgment even though the writ of execution has been issued in the Queen's name and addressed to the Queen's officers. I cannot give you the relief which the Sovereign would or could give you in almost every other case?" I do not think the judge could. I may be right or wrong, but I instance this because I believe that the judges ought to be told. It is not enough in these cases to say that previous enactments dealing with orders of the Supreme Court, Orders Nos. 46 and 47, or subsequent legislation, if those happen to be amended, shall be construed and have effect subject to the foregoing provisions of this section", that is, with the authorised form which the Council, the Commission and the Luxembourg Court may have instituted.

Is our judge to say "No, you must go back to the Council or the Commission or the European Court. I cannot give you the ordinary relief against execution even though the writ of execution runs in the Queen's name?" That may be right or wrong; I do not know. All I can say is that there is no provision that I can see in this legislation or subsequently to tell the unfortunate judge what he has to do. That is the burden of my complaint against the modality of these seven or eight words. They really are too fragile a vessel to contain the enormous amount of liquid involved, and of which I approve, in wedding together Community law and British common and Statute law.

§ Sir Gilbert Longden

I rise only to redress the balance because I shall say nothing that has not been said before, and much better said, but it is a coincidence that most of the speeches so far have been by the hon. Members who are known in parliamentary shorthand as anti-Marketeers. They have naturally supported these Amendments because they cannot swallow the prospect of any abrogation of the sovereignty of the House of Commons. I appreciate their point of view but I do not share it. By a large majority the House has decided 1307 to join the European Economic Community, on known terms which have been negotiated by the Government.

§ Mr. Neil Marten (Banbury)

With respect, the terms were known only in January. My hon. Friend referred to "known terms". When we had the Division on the known terms it was won not by a large majority but only by eight.

§ Sir Gilbert Longden

The House decided on the principle of entering the Community by a very large majority. It must have known in so deciding that there would necessarily be considerable abrogation of its sovereignty. It could not possibly have done so if it had thought otherwise. It follows that the House by that large majority, with its eyes open, is agreeable to accepting the prospect.

There are many reasons for our so doing which have been spelled out by many hon. Members, and it would be both tedious and out of order for me to repeat them now. Suffice it to say that the majority of people believe that we should on balance gain more than we should lose. We do not abrogate sovereignty to a bunch of faceless bureaucrats in Brussels. We shall cede part of our sovereignty over certain of our affairs to a democratically elected European Parliament in which we shall have a powerful voice and in which, should any proposal be made which we consider would infringe a vital national interest, we shall have a veto. That is appreciated by Amendment No. 426. We also know, as my right hon. and learned Friend the Member for Hertfordshire, East (Sir D. Walker-Smith) has quoted, along with others, that a later Statute passed by the House may repeal an earlier one, that each Parliament is unaffected by what its predecessors have done.

The last part of this Clause expressly envisages subsequent Acts which may amend this Measure. Why, therefore, asks my right hon. and learned Friend, put the words in at all? The answer surely is because they express the present intention of the Government, as do all Acts of Parliament if they are not amended. I shall therefore oppose the Amendments.

§ Sir John Foster (Northwich)

It might be helpful if the Committee examined subsection (4) in the light of the constitutional conventions. It is well known that the English legal system has avoided a clash in certain matters, for instance between Parliament and the Executive and over the forcing of a Roman Catholic priest to reveal the extent of his confessions. One of the rules of construction which the English legal system has used to prevent a breach of international law is to say that the courts will not interpret any provision of an Act as conducive to a breach of international law. This deals with the judge in the dilemma to which my hon. and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) has referred. Subsection (4) reinforces that convention because it says in the early part that subsequent Acts should be interpreted in accordance with the European Communities Bill. Therefore, there will be no suggestion to the judge that this Measure is being infringed.

6.0 p.m.

There are people who believe that the sovereignty of Parliament is not absolute. Mr. J. W. Gough wrote an interesting book called "Fundamental Law in the English Constitutional History". I do not subscribe to that view. A subsequent Act says that notwithstanding anything in subsection (4) of this Clause of the Bill, we hereby do so and so. The sovereignty of Parliament would obtain.

It is to be noticed that it is not the first time that we have entered into treaties of this kind. The European Comission of Human Rights has power to override the provisions of English Acts of Parliament and judicial decisions. If we passed an Act of Parliament saying that no Roman Catholics could marry and that Jews could not marry Christians, we would very soon find that the European Commission of Human Rights would order the English State to abrogate that provision of an Act of Parliament. An individual affected by an Act could petition the European Court of Human Rights and get an order from that court ordering the British Government to abrogate that provision.

Some people believe that even if an Act of Parliament sets out in terms that no Protestant can marry a Roman Catholic, the courts would disregard the English parliamentary provision of the Statute 1309 and say that the solemn commitment or the English Government through a treaty, having subscribed to the European Commission of Human Rights, should obtain and the English Statute should be disregarded.

I do not subscribe to that view. However, it shows that there is an area of debate on this attitude of sovereignty and subsection (4). The short answer is that it merely reinforces this canon of construction in English courts. It enables the judge to say with more force than he usually does when the principles of international law are put forward, "I construe the subsequent Act as not invalidating any provision of the European Communities Bill."

§ Mr. John

Surely the hon. and learned Member for Northwich (Sir .J. Foster) will accede to the proposition that what Clause 2(4) says is that a subsequent Act will be read in the light of previously passed domestic pieces of legislation and not international law. Subsection (4) says that any Act subsequently passed will be read in the light of this Act. It is a domestic Act.

§ Sir J. Foster

This Measure is implementing international law because it is implementing the treaty agreement with the European Communities countries. In effect, the Bill is saying that any subsequent Act shall be construed as agreeing with the treaty commitments of the British Government.

§ Mr. John

Does not that beg the argument, which has been adduced many times in Committee, that the Bill in the form and manner in which it is drawn goes much further than is necessary to implement any treaty obligations arising out of our accession to the Community? It is a domestic law binding future Parliaments and not an international obligation.

§ Sir J. Foster

The hon. Member depends on the premise that the Bill goes further than our obligations under the treaty. I do not think it does. Its purpose is to implement the treaty. Subsection (4) says that any subsequent legislation must be construed as agreeing with it.

I belong to that school of thought, which is pretty general in the House of Commons, that if subsequent legislation said: 1310 And notwithstanding what we have agreed with other countries, we will do so and so, the sovereignty of Parliament would obtain. There is a school of thought Which does not agree with that view. As my hon. and learned Friend the Member for Darwen said, the answer is a kind of political argument.

One cannot imagine a Government solemnly passing legislation through the House which they intend to be in breach of their treaty obligations. That is why much of the debate on the Amendments has been unreal. If one wanted to abrogate the treaty, that would have to be done by a declaration or a negotiation with the other countries. It would be within the framework of our obligation under international law to pass legislation which paid attention to the amendment or abrogation of the Common Market Treaty.

It is unreal to imagine that a subsequent Government will start their attack on the European Community by bringing in legislation which is inconsistent with their treaty obligations. It is also unreal to imagine that we would pass a law that people can be put into prison arbitrarily. We would soon find ourselves in the difficulty of facing a petition to the European Court of Human Rights. There would be an order to the British Government to repeal that legislation and to release those imprisoned.

That abrogation of sovereignty, if one likes to call it that, was done years ago. Nobody objected because the whole temper of the country was agreeing with the object that there should not be an infringement of human rights in this country. However, this matter is much more controversial. Therefore, the people who object to the Common Market have sought to say, quite wrongly, that Parliament should have the right to bring in legislation in breach of their treaty obligations.

For those reasons the arguments against the Amendments are founded on unreality because of the premise that the Government of the day will bring in legislation against their treaty obligations. We have always to go back to the treaty obligations first. We must assume that Governments will bring in only legislation which is in accordance with our obligations.