§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Graham.]
§ 4.2 p.m.
§ Mr. Nigel Spearing (Newham, South)
I am pleased to be able to draw attention briefly to the subject of the designation of European Economic Communities treaties by this House.
It is peculiarly appropriate in this period for the airing of grievances—which indicates what hon. Members can do, contrary to articles that we have read recently—that to reply to this brief debate we have no less a person than my right hon. Friend the Leader of the House because, of course, he is responsible for the procedure of this House. However, he is also welcome for other reasons. First, in his other capacity he represents the prerogative of the Crown and, of course, it is the Crown's prerogative in relation to the power of Parliament which has been a continuing constitutional theme down through the ages and which is especially important today. The second is that, as Lord President of the Council, my right hon. Friend is responsible for some of the Orders in Council which are issued and which have to be debated by this House. The third reason why it is appropriate that my right hon. Friend should be here is that he is in effect Deputy Leader of the Party, of which I have the honour to be a member and which put on record its view on this matter as long ago as 1924.
That view became known as the Ponsonby rules, which were proposed to Par- 1060 liament by the then Mr. Arthur Ponsonby on 1 April 1924 and which started a procedure which we have not yet completed. On that day, 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, and to allow this House adequate opportunity to discuss the provisions of these instruments before their final ratification."—[Official Report, 1 April 1924; Vol. 171, c. 2001.]Interestingly enough, Mr. Ponsonby put before the House three possibilities, one of which was an Address to the Crown, which presumably was a declaratory motion and which he discarded. He discarded the possibility of an Act of Parliament, and he came down in favour of custom and practice, which became known as the Ponsonby rules.
Perhaps it is salutary to recall that the first occasion—the first that I can remember—when those rules were broken was in respect of the Treaty of Accession to the EEC—some 600 pages of treaty which were not scrutinised by the House after signature but before ratification. There was a debate on 20 January 1972, when the then Government said that, although they had not published the treaty, the ensuing legislation would be an adequate ratification, and, as we know, when we came to that day various matters relating to the treaty were not in order.
Thus, the fount of the grievance which I raise today lies in the procedure with the European Communities Act 1972. Section 1(3) provides:If Her Majesty by order in council declares that a treaty specified in the Order is to be regarded as one of the Community Treaties as herein defined, the Order shall be conclusive that it be so regarded "—and it goes on to expand on that theme.
That is of vital importance for the powers of the House, because EEC treaties are very different from those which we used to have previously. The EEC is a super-Executive, a super-Crown, and the negotiation of such treaties is in the hands not of Her Majesty's Government but of the EEC.
Such treaties widen the authority of the EEC and can amend the basic treaties themselves, as has been done. Moreover, some of them are self-enacting in law, unlike previous treaties, and some 1061 of them—as we have recently found—can vote money. Therefore, the way in which we treat these treaties, or, rather, the orders which so designate them, is very important. There are three ways in which that is defective.
First, should a domestic statutory instrument which is designed as secondary legislation from the House be used to ratify what is, in effect, super-primary legislation, with all the rules of order relating to what is normal secondary legislation under an Act of Parliament, especially in respect of time? I argue that that assumption is wrong.
Second, the domestic statutory instrument procedure is itself defective. The Procedure Committee has drawn the attention of the House to these matters, but until that question is dealt with we have difficulties, particularly in having to insist on debates on the Floor since the procedure for debate in Committee on a motion to consider is ineffective.
Third—I shall return to this later—the domestic statutory instrument procedure does not permit the House or the nation to have proper information or to put on guard those who should know the effect of the treaties thus to be ratified. The passing of a relatively simple affirmative resolution by the House operates as a trigger on a whole range of measures which do not receive the customary scrutiny of the House although they are legislation in law to which this country is subject and which can be applied by the courts.
The best example of that occurred on 8–9 December 1975 when two orders, the European Communities (Definition of Treaties) (No. 3) and (No. 4) Orders, came before the House, by which it was sought to ratify no fewer than seven treaties—seven treaties of 100 pages, three pages of which amended the Treaty of Rome in respect of the financial powers of the Assembly, a vital piece of amendment which was spotted, although, of course, its significance was submerged in matters to do with Greece, Israel and Turkey.
Thus, we have a procedure whereby one can smuggle through extremely important matters. In written answers on 15 March 1979 the full list of treaties so designated was published in Hansard, and anyone looking at it will see that they have a wide range of applicability and 1062 importance. I submit that this wide range of self-enacting, or virtually self-enacting legislation is not suitable for the statutory instrument procedure.
This matter has been the subject of a good many complaints. In particular, the Joint Committee on Statutory Instruments in a special report—House of Commons Paper 169, Session 1977–78—drew attention not only to the dearth of explanatory maaterial on the back of the order but said that these orders or treaties could be self-enacting and that certain criterialaid down by the European Court for determining whether or not a particular treaty provision is directly applicable are not always easy to apply in practice.The Committee commented:in the absence of any information in the Orders about the provisions of the relevant treaties or any indication of which of these provisions might be held to be directly applicable, it was difficult for Parliament to appreciate the significance of passing the Orders.Indeed, it was. The Committee also staated that in future orders the memorandum given to Members would provide the House with information concerning directly applicable legislation by the courts.
That did not give information to the general public. Nor did it mean that the House was much the wiser about the order. In a previous debate on 25 April 1977 complaints were made to the Minister who replied to the debate. At that stage, and even subsequently, the explanatory memorandum did not tell the House, or any reader of our debates, the purport of the order. It was merely stated that such and such a treaty was being designated a treaty under section 1(3) of the European Communities Act. The public were not told what the treaty did. On 25 April 1977 the Minister said:The Department will provide fuller explanatory memoranda to accompany future orders so as to help the House to the best of our ability.That was an undertaking.
In the same debate another Minister said:I believe that it may best be done by explanatory memoranda, but I am sure that he does not want me "—" he"is me—to try to answer him immediately. We shall examine the matter and come back to the 1063 House with an answer on that point.—[Official Report, 25 April 1977; Vol. 930, c. 961–989.]Surely those two undertakings are applicable, as was a similar one on a not unrelated subject on 28 November 1977, of which my right hon. Friend is well aware.
The undertakings did not bear very much fruit. The latest emanation of the Definition of Treaties order that we had last week—Draft Communities (Definition of Treaties (ECSC Decision on Supplementary Revenues) Order 1979—retained at least several of the undesirable features. Indeed, it contained two additional undesirable features. It was putting the clock back.
I referred to the explanatory note in the debate on Wednesday 7 March 1979, as hon. Members will see from column 8 of the Official Report for that day, but I do not have time to quote it now. The note gave the reader no idea of the nature of the order. It introduced a third lacuna as the Command number of the treaty was not quoted. If anyone wanted to read the treaty to ascertain what it was, he or she would not be able to get it as the number was not quoted.
The Minister said that the number had not been allocated. If it had not been allocated and had not been printed, I submit that it was wrong for the order to be laid at that time. It could have come before us a few weeks later when the treaty was available.
The note went on to stateThis Order declares the Decision of the Representatives of the Governments of the Member States ".Apparently Ministers of the Crown had not been directly involved despite the fact that it was authorising a charge of £3.3 million over and above the treaty requirements of the European Coal and Steel Community. The undertakings were not fulfilled, and we had two additional curiosities that went the other way.
The Minister tried to explain away the lack of Command number. He later said that he thought the matter—indeed, it was agreed at Luxembourg on 30 September 1978—had been agreed by the Energy Minister on behalf of himself and the Industry Minister. However, a recent question shows that the Energy Minister did not approve it. It turns out that it 1064 was approved by the Agriculture Council on 30 October 1978 under the so-called A procedure. It is not good enough that treaties entered into by Her Majesty's Government, even through the EEC, should be put through the Council when the Minister present is concerned with agriculture and the treaty relates to energy and coal and steel. This is a poor precedent. It might have been uncontroversial in that it was an aid procedure on that occasion, but it is wrong.
In that debate I asked the Minister why a Government who were devoted to open government had not included the fuller explanatory memorandum. I said that it could hardly be a matter of court judgment and that, indeed, a full explanatory memorandum which could not give full, direct applicability could, if necessary, contain a note to that effect.
The Minister could not give a satisfactory reply. Perhaps he did not think that I would turn up for the debate. He said:I am sure that my hon. Friend will forgive me if I do not try to cast my mind back and confirm or deny my agreement on something that happened in the past."—[Official Report, Sixth Standing Committee on Statutory Instruments, &c., 7 March 1979; c. 29.]It is an extraordinary statement for a Minister to make, particularly as he might have foreseen that this matter was to be raised.
The last order voted money. There was a point of order about that last week. Mr. Speaker ruled that it was in order because of at least two precedents of Orders in Council voting money. But we have not had Orders in Council which vote moneys to the EEC, over and above the treaties into which we have already entered. This is a dangerous precedent.
I wish to ask my right hon. Friend four questions. First, will he undertake to examine the whole of the ratification procedure, as it affects the Act and the powers and procedures of the House? I am sure that he will do that because the Procedure Committee is to report on that shortly.
Secondly, will my right hon. Friend undertake now to fulfil the obligations of the explanatory memoranda, particularly as the Government are committed to open government, and explain why a commitment entered into two years ago has not been fulfilled and why the last order was so poor?
1065 Thirdly, will my right hon. Friend examine the question of direct legislative effect and how the public can be put on guard, either by notice in the explanatory memoranda or in the order?
Fourthly, will my right hon. Friend look at the new procedure for voting money by statutory instruments from the Consolidated Fund direct to Brussels and the EEC? I am sure that he is already doing that.
My Government, of whom I am proud and who are doing many good things, are devoted to open government. They must be open particularly in relation to the EEC. I know that my right hon. Friend wishes to fulfil that so far as it is in his power. These are matters which appear arcane in detail but which ultimately strike at the roots of the power of the House and at the British constitution. Unless we guard the frontiers, the rest is in danger.
§ 4.18 p.m.
§ The Lord President of the Council and Leader of the House of Commons (Mr. Michael Foot)
It was right for my hon. Friend the Member for Newham, South (Mr. Spearing) to seek an Adjournment debate on these important matters. I welcome the opportunity of making a statement. There is some confusion. I hope that what I shall say will assist to dispel some of it. If I do not manage to cover all the ground, I promise that I shall seek to communicate further with him about his detailed criticisms, and I shall see whether there is some method of ensuring that my answers appear in Hansard because many other hon. Members are interested in these questions.
My hon. Friend suggested that there are dangers that some of the decisions made under the Common Market procedures will be smuggled through the House. There are such dangers and we must guard against them. But my hon. Friend is one of the best guarantees that they are not smuggled through. As I have said before, he is a one-man scrutiny committee. I do not mean to disparage the Scrutiny Committee, but my hon. Friend is just as good. I am most grateful to him for raising the matter as he has.
I should like to put some of these questions into a more general context. The procedures followed in the definition of 1066 treaties as Community treaties is prescribed in the European Communities Act 1972, which makes provision for the legal consequences which flow from United Kingdom accession to the European Communities.
The Act defines Community treaties as being those treaties setting up the original Communities, treaties subsequently entered into by the Communities and treaties entered into by the United Kingdom which are ancillary to the treaties setting up the Communities.
What kind of instrument is a Community treaty? My hon. Friend has often contended—he implied it again in his remarks this afternoon—that Community treaties are the equivalent of primary domestic legislation and are not treaties at all in many cases. There is a wide range of types of agreement and instruments involved, with great variations in their importance. Those of primary importance are a small minority. I shall have more to say on the handling of those. Some are of very short duration. Others might last indefinitely. Quite a few have no direct impact on the internal affairs of the United Kingdom. But that is no reason for not trying to establish the utmost rigour in our scrutiny of all these matters. Of the rest, most concern the actions of the Executive, while a very few call for changes in United Kingdom law or for a substantial payment from United Kingdom funds.
The terms"treaty"and"international agreement"are general in character and include instruments which may bear any one of a considerable number of different titles. I say this because there is sometimes confusion about it. Others include protocol, exchange of notes, convention or accord. The title of a particular treaty has no bearing on its legal effect. All it does is to indicate the general nature of the treaty.
The 1972 Act also defines the consequences which the recognition of a treaty, as a Community treaty, will have in this country. Section 2(1) provides for the direct applicability of the rights, powers, obligations and so on which derive from such treaties. Such enforceable Community obligations or rights become part of the law of the United Kingdom, and so become directly applicable duties or rights imposed or conferred on all the 1067 subjects of the Crown. Section 2(2) of the Act establishes powers of subordinate legislation to give effect to Community obligations arising out of Community treaties. Section 2(3) of the Act provides for expenditure to meet Community obligations created by Community treaties. Various law-making powers under existing United Kingdom legislation or similar powers of the legislatures of the Channel Islands, the Isle of Man and Gibraltar can be exercised to fulfil Community obligations under sections 2(5) and 2(6) of the Act In legal proceedings, the treaties are regarded as Community law, as provided for in section 3 of the Act.
I agree with my hon. Friend that the ability to attract all these provisions to a treaty by means of an Order in Council which recognises the treaty as a Community treaty is a far-reaching power for Parliament to confer on a Government. We discussed many of these matters when the 1972 Act was going through the House of Commons. But this far-reaching power is tempered in certain ways and there are some restrictions upon it.
Some parliamentary control of the Executive is provided for in section 1(3) of the Act, which provides that no treaty entered into by the United Kingdom after 22 January 1972 is to be regarded as a Community treaty for the purposes of the Act unless it is specified as such in an Order in Council which must be approved by affirmative resolution in each House of Parliament. Moreover, where subordinate legislation is required in the United Kingdom to give effect to a treaty, such regulations are made under section 2(2), and Parliament has an opportunity to consider them.
I fully accept what my hon. Friend said about the not always adequate provisions made under these arrangements. None the less, there are some parliamentary precautions which are available and which are used.
My hon. Friend asked whether treaties, sometimes of considerable importance in their own right, should be subject to legislative procedures which we should regard as suitable only for subordinate legislation. I have considerable sympathy with his view, which was put forward in the debates when these matters were before us some years ago.
1068 These procedures were laid down in the 1972 Act and, like it or not, the United Kingdom's accession to the European Communities created new obligations and demands for the Executive and legislature of this country. Over the years we have been seeking to try to accommodate this momentous change in our constitutional position to our older and, some of us believe, better practices. We are not always successful in doing that, but we are seeking to pursue that end. New solutions had to be sought and clearly we should try to found them on the established practices and laws of this country.
There are other precedents for the procedure which was adopted in the particular instance to which Mr. Speaker referred in his statement—for example, an enabling Act with ensuing subordinate legislation.
The Act has made some attempt to achieve a solution to the problem of ensuring that Community treaties can be given effect in United Kingdom law while at the same time ensuring a degree of parliamentary control over the creation of new obligations.
I assure my hon. Friend and the House that the Government approach their duties under the European Communities Act with a considerable sense of responsibility and almost of trepidation. There are many pitfalls, as we know from many of the debates which have taken place in the House. For example, we recognise that an Order in Council introduced under section 1(3) of the Act, which defines as a Community treaty a treaty of fundamental importance, could not be debated upstairs. Our practice has been and will continue to be to bring such important orders to the Floor of the House, if necessary, in prime time so that they may be given the necessary consideration.
I ask my hon. Friend and the House to recognise that where an order concerns a Community treaty which can justifiably be regarded as the equivalent of domestic subordinate legislation it would be right to continue to take such an order in Standing Committee and to proceed on that basis until we have a further general review of the situation.
In my opinion, the House of Commons, having passed an Act such as the 1972 Act in the circumstances in which it was passed—it went through the House and 1069 the other place without any amendment whatsoever—it would be a peculiar state of affairs in the history of our Parliament if we said that that Act was to be unreviewable. I am not taking that attitude at all. I think that we shall have to look afresh at many of these matters. Whether they will be dealt with by a review of the Act or some of its consequences is another question.
My hon. Friend asked some specific questions about the order. As I said, I should like to reply to him in detail. He mentioned several of these matters in the debate upstairs. I have had a fresh look at the matters that he raised in Standing Committee. In respect of many of the matters that he raised, there is often an explanation that both my hon. Friend and the House will find reflects a different complexion from that which might first have been thought.
As I said at the beginning, I shall be most happy to reply in detail to all my hon. Friend's questions. I hope that I have left myself a minute or two to return to the more general questions which he put to me at the end. I shall not reply in categorical terms to each of them. As he rightly said, some are matters which will come back to the House under the recommendations of the Procedure Committee, and of the Scrutiny Committee, which has been looking at these questions.
My hon. Friend asked me further about the explanatory memorandums and how much information they gave to the House and the country. I again acknowledge to him that I think that one of the difficulties the House has is the way we get the information. If he will give me the opportunity of sending him the details, I 1070 can indicate to him that we have sought to carry out our earlier undertakings. I should have thought that considerable improvement had been achieved, although I have no doubt that there is further progress to be made.
I shall certainly study this whole question afresh in the light of what my hon. Friend has said. I assure him that the Government do not regard as satisfactory the procedures under which we have to deal with these matters. We are dealing with an entirely novel situation in the history of the British Parliament and us relationship with outside institutions, at a time when the pressures on our own parliamentary time are very great. But that is not a reason for neglecting this important question.
As I have said on other occasions, Brtish entry into the European Community marked the biggest constitutional change that we have attempted in this country for generations. It is far bigger than anything else that we have debated in the House, certainly since the war. I make no claim that we have yet solved the problems. What I do claim is that the Government are seeking to take note of the criticisms from my hon. Friend—and, indeed, from the Scrutiny Committee and others who have been considering this matter. Whether we shall have to turn to a larger review in the future is another matter. I believe that that also cannot be excluded in the light of what we have learnt from experience.
§ Question put and agreed to.
§ Adjourned accordingly at twenty-eight minutes to Five o'clock.