§ 3.25 p.m.
§ Baroness Young
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do not resolve itself into Committee.—(Baroness Young.)
Lord Bruce of Donington
My Lords, before the House goes into Committee, I should like on behalf of many of your Lordships to express my protest at the way in which this important Bill has so far been introduced and passed through some of its stages in Parliament. This is a very small Bill indeed but it has enormous national implications. It has considerable constitutional implications, yet it has been treated, or was initially treated in another place, as a Bill of small consequence. Indeed in this House it was given its Second Reading on the last day before the Recess.
The problem in part arises from the structure of the Bill itself. I have to complain that with a Bill of this kind, referring to many other documents, far greater explanation ought to have been given of its full implications. The Bill refers to the Single European Act, which in turn refers to the Treaty of Rome. It refers to a number of declarations, some of which have not been published at all but merely left in the Library of the House. To find out the true extent of this Bill, its true implications for the country and its importance has been very long and tortuous task indeed.
Having said that, I should like to say this. Out of the 55 amendments that were submitted in another place, no fewer than 30 fell under the guillotine and the Bill was given some 20½ hours in Committee. As I understand it, the intention in regard to the Bill in this House is that it should be given a comparatively restricted amount of time within which your Lordships will be afforded the opportunity of discussing it. I therefore have to say (and I say it not only on my own behalf but on behalf of other noble Lords in different parts of the House) that this Bill will be contested. We ask the Leader of the House to afford sufficient time to go into the great detail that it is necessary to go into in order that the full implications are understood not only in this House but in the country.
Twenty-four and a half hours were spent by your Lordships in this House discussing the Salmon Bill. I am not suggesting that salmon is not important to the incomes and palates of perhaps a fairly limited section of the population. I suggest to the Leader of the House and to your Lordships that it would look very odd if a Bill of this constitutional importance were not granted equivalent facilities.
§ Baroness Young
My Lords, this Bill has already been the subject of extensive debate in another place 247 for more than five days, three of which were in Committee. Your Lordships' House debated the general principles of the Bill on 31st July on Second Reading. It was my view that in this House, although a large number of amendments have been tabled for the Committee stage, they could be grouped so as to form six major debates. It is therefore not unreasonable to expect the Committee to cover this ground in the course of today. The House will be returning to the Bill in due course at Report stage and at Third Reading.
I regret that the noble Lord, Lord Bruce of Donington, should feel that he did not have all the papers available. My understanding is that the European section of the Printed Paper Office has been in the process of reorganisation during the recess. But had the noble Lord sought the assistance of my office, or indeed I am sure of the House authorities, we should have done our best to help him.
May I suggest that, rather taking up more time debating this Motion, the House do now resolve itself into Committee? Otherwise we shall have even less time for the consideration of this important Bill.
§ Lord Broxbourne
My Lords, although in no way associating myself with the strictures expressed with characteristic verve and vigour by the noble Lord, Lord Bruce of Donington, perhaps I may express the hope that my noble friend has not said her last word on the matter. I see that the Leader of the House is here and indeed the Chief Whip, though seated in an unaccustomed place, presumably only temporarily. I hope that consideration can be given, if necessary, to allowing further time for this Bill, having regard to its great constitutional importance.
My noble friend the Minister will see, if she glances to her right, an assemblage of noble and learned Lords on the Cross-Benches who have expressed interest in this matter and whose views are eagerly awaited on these important constitutional issues. May we therefore take it that these matters will not have to be debated in the small hours of the morning—not a time for getting maximum cerebral attention to these esoteric matters—but that, if necessary, further time can be afforded?
§ Lord Denning
My Lords, may I add a few words? I have in my hand documents which are essential reading for anyone who is to take a constructive part in this discussion. The first is the Bill—a little Bill of two or three pages. Next to it, in a way, are the amendments. If noble Lords came into this House in the ordinary way and had a Bill, with amendments, in front of them they could, on reading them, be able to understand and take a constructive part in the proceedings.
In this case I refer to the Bill itself. It tells us nothing whatever of any importance. When one reads the Explanatory Memorandum one does not realise in the least that it involves important constitutional issues for this country, for this Parliament, and for Her Majesty the Queen herself.
Arising from that, and before I turn to any further matters, the really important part of this Bill is that 248 which states we are to have one more treaty added. We are to have a treaty called the Single European Act, which is to be added to the European treaties. Noble Lords may not regard that as a very serious matter, because it is not mentioned at all. However, I am sure the Government will realise that the treaty by itself is no part of the law of England. It is an Act of the executive and has no impact here at all unless both Houses of Parliament affirm it and make it part of our law.
The Bill is an amendment to the European Communities Act 1972, but it misses out the most important part. Section 2(1) of the 1972 Act makes every word of this treaty part of the law of England, to be available and enforced in the law. Every word of this treaty, this Single European Act, is to be made part of the law of England. That is what we are doing. So let us turn to the Single European Act. The preamble is comprehensive enough. Its intention is to transform the state as a whole into the European Union. Is not that a political matter of the first importance?
However, when one reads beyond the preamble one becomes completely lost. One cannot understand one word of all these provisions, pages of them, because they refer back to the Treaty of Rome. Noble Lords would have some difficulty in finding that, but there it is. As the Bill is amending all those provisions, one must have the Treaty of Rome available. But one would have some difficulty in getting it. It is not on the statute book. Therefore, one must have available this Single European Act and the Treaty of Rome, and one must compare one clause with another—pages of them.
Noble Lords would not get very far in understanding until they eventually turned to reports by the Select Committee of this House. They are very good reading and have been well done by Members of this House. In those reports, one will see the important provisions. It is in the reports that one will see the constitutional point which ought to have been made clear at the beginning. The powers of the United Kingdom Parliament will be weakened by the Single European Act. The Select Committee draws the special attention of the House to this important fact.
The Government have not drawn attention to that. The Government have not mentioned one word of it all the way through. That is the important fact which is being brought before your Lordships for consideration. I am afraid it is very difficult to understand unless, as has been said, one reads that pile of documents. Therefore, I add my protest; but we must go ahead and do what we can.
§ Lord Edmund-Davies
My Lords, on 31st July this Bill was described by a noble Lord on the Government side as a quite modest Bill. Its modesty lies only in its physical size. It is full of the most widespread implications. It would be quite wrong and shameful if this Bill were considered now in an atmosphere of suppression—suppression by reason of time, not suppression intended by anybody.
It would be quite wrong to consider the Bill with one eye on the clock. It is a Bill on which even at this Committee stage—not the best stage to be considering 249 a Bill—it would be wrong to have any feeling of pressure to cut short our observations. I hope the Bill will be approached in that way, giving it proper time. I hope that what I believe to be right will carry the day in this respect: that this Bill, which is of great constitutional importance, will be approached by everyone regardless of party affiliation. I approach the Bill in that way. I have no party affiliations. I should like to feel that all us can look at this matter in a liberal way and in a relaxed atmosphere.
On Question, Motion agreed to.
House in Committee accordingly.
(The LORD AMPTHILL in the Chair.]
Clause 1 [Extended meaning of "the Treaties" and "the Community Treaties"):
Lord Bruce of Donington
moved Amendment No. 1:Page 3, line 13, after ("Communities) "), insert ("but not Article 4 of Chapter 1 thereof").The noble Lord said: I have agreed, in the interests of expediting the Bill, to the grouping of Amendments Nos. 1, 6, 7, 25, 39, 40, 41 and 42, most of which, the Committee will readily apprehend, involve complicated legal questions. In view of that, I move the amendment formally in the hope that some observations might pass from the lips of the noble and learned Lord, Lord Denning, who is far more conversant with these legal matters than I am. I beg to move.
§ Lord Denning
I wish that I had put down my name to this amendment because it is important. As it is so impossible to understand what this is all about I must explain it.
The European Court has been overwhelmed with cases and cannot get through them. It is therefore seeking to make a number of lower courts—called attached courts—to deal with the gross overloading of work. That is the essential part of the article concerned, which in two or three places is a whole page long. The important point is that it is to set up a series of courts of first instance which would try cases on fact final, on law, and with appeal to the European Court.
I wish also to add a word about the European Court and its methods, which have been applied. They have been considered quite recently in the Court of Appeal in England. I am dealing with cases under those important articles 85 and 86 which deal with commercial matters of the first importance—abuse of a dominant position and unfair competition. Companies from the United Kingdom are closely involved in these matters. One case on those sections came, when I was sitting in the Court of Appeal, between an English Company, a garden cottage one, and a great English milk marketing board. The case I mentioned of 1985 was in the Court of Appeal between, again, two English companies, one from Belfast and the other from England. The case was all about repairing cameras, unfair competition and the like.
That last case went to the European Commission and thence to the European Court of Justice. I shall 250 not go into the details of it, but the Master of the Rolls, Sir John Donaldson, said it was totally unlike anything in our judicial system, with both sides being heard and dealt with then. Instead, it went before the European Commission, who were themselves treated as the investigators, almost as the prosecutors, and who carried it through, as Sir John Donaldson said, quite dissimilarly from our own English procedure. Indeed, he said that it was to be regarded as administrative and not judicial at all. The Commission, were, if you please, acting, as I would think sometimes they do on the Continent, as an inquisitorial system, enforcing their own view, instead of as an adversarial system which the law of England has always maintained.
The question which I am seeking to raise before your Lordships this afternoon is: Are the subjects of Her Majesty to be compelled, for their rights and defences, to go over to Europe to courts manned by European judges with a procedure quite unknown to us, a procedure which our own courts have said is not judicial in the least but merely administrative? Are we to let British subjects go over in that way?
Now I come to the British Constitution. We have a basis which is quite unknown in Europe. Each one of us, and each judge (certainly each one here) has the oath of allegiance to the Queen and, corresponding to that in our constitution, is a duty on the Queen to protect us. By our constitution the Queen is the source and fountain of justice. It is at her behest that we have Royal Courts of Justice here; it is at her behest that our judges are Her Majesty's judges, and it is at her behest, for the protection of all of us in response to our allegiance to her, that she sets up the courts of justice to hear and decide our disputes.
I would like to emphasise that unknown in Europe is this constitutional principle of the allegiance of the British subject on the one hand, and, on the other, the duty of the Crown to protect the British subjects. Let me remind your Lordships of the oath of allegiance. It is constitutional, the oath which every Member of your Lordships' House takes, and it is from an Act going back 100 years or more:I do swear that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth the Second, her heirs and successors, according to law. So help me God.Every one of your Lordships knows that oath of allegiance. It is part of our fundamental constitution. Let me remind you of our judges' oath as well:I do swear that I will well and truly serve our sovereign lady Queen Elizabeth the Second in the office of a justice of the High Court, and I will do right to all manner of people after the laws and usages of this realm without fear or favour, affection or ill-will.There is our judicial system deriving from the Crown as the source and fountain of justice. No court can be set up in England, no court can exist in England, except by the authority of the Queen and Parliament. That has been so ever since the Bill of Rights.
This is also part of our Constitution: corresponding to that duty of each British subject to the Queen, the Queen herself is under corresponding duty to protect British subjects in our rights, which we have inherited all the way down the line. I remind you that the Roman Empire had the same duty. There is Paul and so on: "Can you do this to a Roman citizen?"—Civis Romanus sum. You all know that quotation. Did not Palmerston say in 1850, in his greatest speech: 251As the Roman, in days of old, held himself free from indignity when he could say 'Civis Romanus sum, so also, a British subject, in whatever land he may be, shall feel confident that the watchful eye and the strong arm of England will protect him from injustice and wrong.".That duty in England, the duty of protection of our citizens, the correlative of allegiance by the Queen, is done by provision of the police force to protect us, and by the courts of justice which she has established.
I need not go into all the cases. This principle can be found back in the time of Lord Coke, in Calvin's case, as between England and Scotland:Ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects because they are bound to obey him; and he is called their liege Lord because he should maintain and defend them.".The most recent illustration of it is the China Navigation case, reported in 1932 King's Bench. So the Queen is bound to protect us and to afford courts of justice on which we can rely and to which we can go.
In Europe that constitution is unknown. There is no one source or fountain of justice in Europe. Let me tell you the oath which, under this Treaty of Rome, each judge takes:I swear that I will perform my duties impartially and consistently, and preserve the secrecy and deliberations of the court".I repeat:I will perform my duties".What are those duties? Nowhere are they spelt out in the Court of Justice except in Article 162:The Court of Justice shall ensure that in the interpretation and application of the Treaty the law is observed".The only duty of those Community judges is a duty to see that the law is observed; in other words, that Community law is observed, not the law of England. There is no duty to protect the British subject. Are we then today to say that British subjects are not to go to our courts in England or to Her Majesty's judges in order to secure justice; and that they are not to seek the protection of the law as we know it under the hearings and procedures which we have established over the centuries, but to go to an attached court, to the Court of Justice in Luxembourg?
According to this proposed article the attached court will operate according to the same modes of procedure as at the moment. It is a procedure and process which has already been condemned by the Court of Appeal in England as quite dissimilar from our English law and indeed merely administrative. Are British subjects to be compelled to go there?
That is my criticism of this article which is mentioned in two or three places in this part of the group that we are discussing now, as I tried to point out, because you cannot see it other than by reading through them. There it is in Amendment No. 42 on the Marshalled List:The provisions of Article 168A of the EEC Treaty"—that is the article that we are now considering and it is the one which establishes these attached courts in Luxembourg—shall not be interpreted or applied so as to enable any such attached court to sit in the United Kingdom, or to exercise any jurisdiction over British subjects resident in the United Kingdom".252 That is subsection (1).
Subsection (2) states:In lieu of the jurisdiction of any such attached court, every British subject resident in the United Kingdom and owing allegiance to Her Majesty the Queen shall be entitled to the protection of Her Majesty, according to the law of England, administered by Her Majesty's Judges sitting in the Royal Courts of Justice under the Rules of the Supreme Court".I am stressing the constitution there.
Then in subsection (3) there is a parallel jurisdiction where we do it ourselves:If and in so far as under Article 168A … any such attached court is given jurisdiction to decide disputes according to Community Law, a like jurisdiction shall be exercised by Her Majesty's Judges also to decide them according to Community Law (in so far as that is made part of the law of England …)".So there it is. It is simple and intelligible, I hope. All it is saying is that we British subjects owe allegiance to the Queen and the Queen is under a duty to protect us. She has performed this duty by providing the Royal Courts of Justice to which we can take our disputes and have them decided by Her Majesty's judges. We should not be compelled to go over to a court in Europe manned by we know not whom or in what circumstances in order to go through a procedure and process that are altogether unknown to our law and which the Master of the Rolls has said are quite dissimilar to our own procedure and practice. Therefore I support Amendment No. 1.
§ Lord Gladwyn
My noble friend and colleague Lord Banks is in charge of this Bill so far as we are concerned and consequently he will deal with any individual amendments as and when they arise. However, in view of my 40-year association with what I might call the European idea, and indeed European institutions generally, it has been thought suitable by my colleagues for me to say now just a few words—only a few words—on the basic and fundamental decision which will confront the Committee when it votes this afternoon. Therefore I propose to intervene now in this debate once only and I shall not, except of course by my vote, contest any of the numerous individual amendments proposed by the noble Lord, Lord Bruce of Donington, along with those of the noble and learned Lord, Lord Denning, all of which, I regard as simple wrecking amendments, designed, as it were, to tear the guts out of the recently concluded Single European Act.
That is their intention. But if only one or two of the 53 or so amendments are accepted by the Committee, the danger is not averted. I would respectfully draw the attention of the Committee—and this is my main point—to the fact that the formal adoption of any single one of these amendments would mean that the whole treaty had in effect been repudiated by the British Parliament—repudiated, that is, in spite of the fact that it was believed by the Government to be in the interests of this country and that it has been accepted by all our Community partners. It has been accepted even by the Danes, who are perhaps more jealous of their "sovereignty" than any other nation in the world.
Since in practice it would be impossible to renegotiate this treaty in order to incorporate any of the Committee's amendments, obviously a very 253 dangerous situation would arise which, unless somehow rectified by the other place—and it is not quite clear how it would be—could well mean that our partners in the Community would go ahead without us, thus I suppose eventually necessitating our withdrawal from the Community itself, which is something that I imagine many of the supporters of these amendments may well desire, consciously or unconsciously.
However, I simply cannot imagine that a majority of this Chamber would wish to be responsible for such a tragedy or even that all the members of the Opposition would seek such responsibility if they realised what the danger was. What it comes down to is that the opponents of the Single European Act are really opponents of the whole European idea. They are thus necessarily opponents of all steps over the years that have sought to arrive at greater unity of action among the Western European democracies, which otherwise, as we all know, may well in effect become the satellites of one super-power or the other. Hence, they must be opposed to the advances made in Luxembourg in 1970, in Copenhagen in 1973, in London in 1981 and, above all, in Stuttgart in 1983, to say nothing. of course, of the advances towards co-operation in the foreign political field that have gradually been made under the aegis of the Council of Foreign Ministers over many years.
All these advances, restricted though they were—and I personally wish that they had been greater—took us a little further on a road toward a valid decision-making machinery, the absence of which, as almost everybody who knows anything about European matters realises, has been the reason for the admittedly disappointing performance of the European Community up to now in the economic sphere. All this the opponents of European unity cannot accept for one reason only. They apparently believe that no such progress can be made without some infringement or limitation on what they always refer to as the sovereignty of this nation.
Let us, however, for a moment try to consider the matter dispassionately, without blind recourse to patriotic emotions which obscure the real issue and darken our counsels. It has never, from the start, been a question of our joining a federation in the accepted sense of the term, namely, a number of states which join together with a common parliament or congress to which the executive is normally, at least in some degree, responsible: a President or Prime Minister in total charge of the government: a federal army; a federal police force; a common language; great central ministries, including a Ministry of Foreign Affairs with common diplomatic and consulate services; and a common judiciary with very extended powers. All those things are necessary and inherent in any federation. Under such a system it is indeed true that our ancient institutions would be endangered and even the position of the Queen would become impossible. We do not dispute that.
I repeat that there has never been the slightest prospect of our joining any equivalent body, which, with the possible exception of Italy, would not be acceptable to our European partners either. It has, it is 254 true, as an idea always found favour with a considerable number of European "federalists" as they are called, more especially perhaps by the Italians, a rather modified version of it finding expression during the past few years in Strasbourg in the shape of the so-called Spinelli proposals, the ultimate defeat of which was consequently regarded as a victory for the non-federalists, among whom in the forefront, were the British, who eventually succeeded in pushing through, as an acceptable alternative the Single European Act.
Why, in addition, did we regard it as a victory? Because the amendments to the treaties make provision for reaching decisions more rapidly and more effectively, thus enabling us, by and large, to expand the market and encourage our exports to the Community, to say nothing of ensuring that our services, and notably insurance, receive a far better deal than is at present the case.
It is true that our partners may also profit by the new system which provides, as we know, for a certain extension, in carefully defined circumstances, of qualified majority voting. Here again, the new system might sometimes make it easier to modify the common agricultural policy, which obviously stands in need of reform, and in addition it provides for the first time for policies which match the imperative modern need for progress in research and development. What we may lose on some of the swings we shall therefore gain on the roundabouts. The net result in any case is that everyone will gain because general agreement will be forthcoming.
As for the proposal made by the noble and learned Lord, Lord Denning, which relates to the court and about which he spoke so eloquently, I am afraid that the noble and learned Lord is living in the past. He is perhaps living in the days of Lord Palmerston, or even in the days of the "War of Jenkins' ear"! He is living a long way in the past. The powers of the court, the judgments of which have, under the Treaty of Rome, to be accepted by Her Majesty's Government along with all the members of the Community, were very fully explained to the British electorate on the occasion of the referendum in 1975. I remember making speeches to that effect and no doubt my noble friend Lord Diamond did also. It was then agreed by no less than two-thirds of the British people. Despite what the noble and learned Lord, Lord Denning, said, the powers have never been seriously abused. It is impossible, apart from being undesirable, to go back on that now. As for the subsidiary court machinery proposed under the Single European Act, that does not enlarge the court's powers at all to interpret legislation and so forth. It is simply designed to assist the court in its admittedly valuable work.
It must be evident from what I have said that the only sensible decision for the Committee to take today is to reject every one of the amendments now proposed, preferably without much discussion, on the simple grounds that all are designed, if not to destroy, at any rate to prevent any further improvement in the one constructive experiment in international co-operation that has been accomplished since the war.
I earnestly beg any of the Committee who may be wondering which way to vote not to be misled by any 255 specious arguments about an alleged loss of sovereignty. I wonder what would happen to our sovereignty if we left the Community? Presumably we should once again soon be in the hands of the International Monetary Fund. What would happen to our sovereignty then? Anyhow, a directed economy would be something towards which we should soon be heading. I can understand that Socialists might find this an alluring prospect, but that it should come about as a result of Conservative support is something that I find very difficult to understand. I hope therefore that when they have heard the arguments those doubting Conservative members of the Committee will not support the amendments.
§ Lord Monson
Before the noble Lord sits down, is he seriously implying, as he seemed to do at the beginning of his speech, that the Committee has no moral right to pass amendments to the Bill even though it may collectively believe that some or all of the amendments are vital for the protection of the inhabitants of the United Kingdom?
§ Lord Gladwyn
We have a moral right to do anything, however foolish it is. All I said was that if the Committee passed the amendments we should not be able to renegotiate the document. It would fail and the consequences would stare us in the face.
The Earl of Bessborough
I do not want to repeat what I said on Second Reading, when there were 18 speakers. All these matters were considered in great depth then although the press quoted more of the noble and learned Lord, Lord Denning, and the noble Lord, Lord Bruce, than it did of the other 16 speakers. As many members of this place said then, this battle was fought 14 years ago. It was perhaps re-fought during the referendum. The decision was well endorsed by the referendum. I am sorry that the noble Lord, Lord Gladwyn, was not one of the 18 speakers because he has now made a most important contribution, with which I agree.
I should like to refer to the remarks made by the noble and learned Lord, Lord Denning, on the court of first instance. It has been clear for some years that something needed to be done to reduce the workload of certain cases before the existing European Court of Justice. As the noble Lord, Lord Gladwyn, said, we accepted its existence. I think that the noble and learned Lord, Lord Denning, is being unduly fearful. In its report on European union in July 1985, a Select Committee of this place agreed that the court's workload was excessive and increasing. Your Lordships' own Select Committee believed that the court should be relieved of the obligation to hear certain staff and competition cases at first instance. The committee stated that this would allow the court,to concentrate on cases which clearly raised issues of general importance.The establishment of the new court, this court of first instance, for which the Single European Act, in Article 11, makes provision, does not involve any extension of the European Court's jurisdiction, merely a redistribution of its workload. The powers of the court could not be extended—I am sure that the noble and learned Lord, Lord Denning, who seems to have 256 read all the documents, must realise this—without further treaty amendment which would have to be brought before this Chamber following unanimous agreement of all member states. It is in everyone's interest—all member states and everyone in the United Kingdom—to have the court working more efficiently. Reduced delays mean greater legal certainty. I strongly endorse therefore the establishment of this new court.
§ Lord Campbell of Alloway
I should like to make a contribution on the merits of this series of groupings, wholly related, as my noble friend Lord Bessborough has pointed out, to the establishment of an attached court that in no way alters the fundamental jurisdiction of the court at all. I wish to confine my observations to this issue on its merits.
What has happened, no more or no less, is that Ministers recognised at The Hague this year that it was impossible for the court to continue with its workload. As the court is responsible for maintaining the legal order of the three treaties by interpreting the primary and the secondary legislation where these provisions have supranational effect, there is an urgent and crying need to accept that if the legal order is under such a degree of strain, something has to be done about it; and something has to be done about it soon. That something has been agreed at The Hague. That, no more and no less, is—
The Earl of Bessborough
My noble friend means, I think, the council. The European Court meets in Luxembourg.
§ Lord Campbell of Alloway
I appreciate that the court is at Luxembourg. I have appeared in it on more than one occasion. I am talking about where the agreement was made. It was made at The Hague, if my noble friend will forgive me.
In these circumstances, dealing with the merits, to what avail is it to attack a system of justice that we have accepted by accession and that we have accepted for 14 years? To what avail is it to talk in emotive terms—we all feel that emotion—about our allegiance to the Queen? To what avail is it, in this context, to drum up the emotions? There was the partial surrender of sovereignty by the will of the people of this country some 14 years ago. We owe, of course, a primary allegiance to the Queen. But we also owe some allegiance to the surrender of sovereignty that we accepted in order to make the system of Europe work. To what avail is it in these circumstances to make what I say, with the greatest respect to the noble and learned Lord, is an emotive and ill-conceived speech?
I am dealing only with the merits of attaching a court. Are we to frustrate the working of the treaties by hobbling the development of the only institution responsible for maintaining the legal order of a system that the people of this country have accepted? I accept with gratitude the whole approach of the noble Lord, Lord Gladwyn. It squares totally with mine. What is there to be done, our Government having agreed with other governments that this further court is necessary? It is far worse than a diplomatic impasse or diplomatic disaster of the greatest magnitude. If we do not accept the proposal of a more efficient system for operating 257 the court of first instance, the other member states will, at the end of the day, say, "Are you in with us? Or are you going to be the odd man out in Europe? Are you going to be up to your old tricks again?"
It is an economic problem. The survival of this country depends on our remaining in the Common Market. If we are to make sense of our membership and pull our weight in this organisation, it is idle to pick at an agreement made by our Government with all the other governments, all of which accept that this is a proper step to take.
§ 4.15 p.m.
§ Baroness Elles
In supporting very much the remarks of the noble Lord, Lord Gladwyn, and my noble friends on these Benches, I wonder whether I may address myself to the details of the comments made by the noble and learned Lord, Lord Denning. All of us have much respect and indeed admiration for the noble and learned Lord but are somewhat in doubt as to some of the comments that he made in his eloquent speech.
The noble and learned Lord referred to the overloaded European Court of Justice. That is, of course, perfectly right. I obtained the figures yesterday from the registrar of the European Court of Justice in Luxembourg. The number of staff cases alone coming before the court last year amounted to 65. And already this year, up to July, there had been 42. In a recent report, now before the European Parliament, the delay in hearings was shown to be something like 10 months for direct actions and approximately two-and-a-half months merely for preliminary rulings. If one considers the enlargement of the Community through the accession of Portugal and Spain it is expected that there will be delays of something like 20 months for a case and 16½ months for preliminary rulings.
The noble and learned Lord, with all his knowledge of the laws of England, can go further back than a bill of rights. He can go back to the Magna Charta. He will remember the famous saying that justice delayed is justice denied. Surely he would not deny British subjects having their rights protected and guaranteed in a European court. That would be extraordinary, knowing, as I do, the noble and learned Lord's immense contribution to the development of English law in the field of the protection of rights of individuals. I was therefore a little surprised to hear his remark that British subjects should not be able to go to this court. Surely we should be thankful that within a Community based on the rule of law, our British subjects can expect that their rights will be guaranteed within a decent time limit—with the prospect of an even better service—in the attached court.
I was a little sad that the noble and learned Lord should have been derogatory in his references to European judges. Surely he, in his great standing in this country, must have come across many brilliant and learned judges of other countries within the Community. That was a statement which I hope he would feel he could not maintain when one considers the many brilliant lawyers in the field of human rights and justice for which the whole of Western Europe stands.
258 I was particularly sad because the president of the European Court of Justice is no less a person than our own British nominee, Lord Mackenzie Stuart, who presides over the European Court with such distinction. It was because of his knowledge of law, and his standing in Europe as a lawyer, that he was elected unanimously and with acclamation as president of that court, and has been so for the last four or five years to my knowledge. I say these words with some sadness at the way in which the noble and learned Lord has addressed this matter. I understand his emotion and concern for the rights of British subjects, but I think we have to look at this matter in the current situation, as other noble Lords have said. We have been in the Community for 13 years. We have had decisions from the European Court during the last 13 years. British subjects have had the right to go to the European Court for the last 13 years. Surely British subjects will not be stopped in the future from going to a court which is to be only of first instance and will have exactly the same powers as the other main court.
Finally, I should like to remind those noble Lords who perhaps feel that we should not have this court that it was in this very building—
§ Baroness Elles
Perhaps I may continue this one sentence if noble Lords will allow me. In conclusion, it was in this very House, when we were discussing competition procedure, that it was recommended in the report of the European Communities Committee published in February and debated in this Chamber in April 1982, that we should be investigating the possibility of setting up a first instance court to deal with competition cases, particularly those that come under Article 17. Nobody will accuse the noble and learned Lord, Lord Scarman, of being particularly pro-government or pro-anybody. I well remember the noble and learned Lord saying that this would require an amendment to the treaties and therefore at that stage he would not propose that we should have that court.
With those words I hope the noble and learned Lord, Lord Denning, will feel, despite his eloquence, that we who want to see this first instance court established will recognise that it is for the benefit of British citizens and not to their detriment.
§ Lord Somers
I quite agree that the courts which we shall have are of the greatest importance. However, surely the noble Baroness would agree that even more important is the law under which those courts will operate. In future we shall not be subject to British law but to European law.
§ Baroness Elles
If noble Lords will allow me to reply to that statement, we are already members of the European Community, since 1973. The European Communities Act 1972 recognised the decisions of the European Court of Justice. Therefore the position does not change at all. The first instance court will not have any further powers than those of the present court. That has been guaranteed and underscored, not only in the Single European Act but by every member state. 259 No member state would give new powers to the court other than those it already has.
§ Lord Kennet
Perhaps I may add to what my noble friend Lord Gladwyn has said on the general debates this afternoon. I believe that no argument will be advanced in favour of these amendments today which is not also an argument against the 1972 European Communities Act. A decision has been taken by this sovereign Parliament to join the European Community. What we face in this Bill is no more than a development and consequence of that decision.
The noble and learned Lord, Lord Denning, with his usual skill conjured a vision of an infringed Royal prerogative, and of a damaged allegiance among the subjects of Her Majesty the Queen. If Her Majesty the Queen were to command me on my allegiance, or any noble Lords on their allegiance, to do this or that—for instance to pass the amendment proposed by the noble Lord, Lord Bruce—that might shake us. But she has not done so; and noble Lords on all sides of the Chamber will have noticed that for the last three centuries successive sovereigns have been careful not to command either House of Parliament on their allegiance to do this or that. I believe that allegiance to our sovereign is very much bound up with our parliamentary form of government. We must remember that this Parliament has three estates. That in my view is the way to look at the question of allegiance to the sovereign.
Lastly, if I may add a note of reality, several speakers have asked us to confront our minds with the apocalyptic consequences of amending this Bill. The mighty wagon in Brussels will roll forward and tiny Britain will be crushed by the advancing forces of progress. I think the first thing that would happen would be that we should be overruled in the House of Commons.
§ Lord Nugent of Guildford
I should like to add one point which I think is relevant especially to the earlier speeches. There is a suggestion that there has not been sufficient information on this very important matter—I certainly go along with that; that the House has not been kept sufficiently informed, and that there might even be something furtive in the way the Government have handled it. I want to call attention to the two reports of the Select Committee that we have had on the subject—one last year and one this year. We also had the debate at the end of July when the noble and learned Lord, Lord Templeman, who was chairman of the Select Committee concerned, made the most cogent and authoritative speech analysing the proposals in detail and leaving no doubt whatsoever that the balance of advantage lay in accepting these proposed amendments.
My noble friend Lord Campbell of Alloway has called our attention to the fact that what is proposed here in the way of addition to the courts is a very small addition of attached courts, with various safeguards which I do not propose to expound now. The noble and learned Lord, Lord Templeman, dealt with these in great detail, as does the report. We have all had the opportunity of reading and studying the report. Many of us also had the opportunity of hearing the noble and 260 learned Lord, Lord Templeman. There can be no doubt to anyone who is in favour of our remaining as a member of the Community that this proposed new machinery of a certain measure of delegation, which is very carefully set out, will on balance be to the advantage of the whole Community in accelerating the completion of the internal market and is therefore very much to the benefit of our country also.
I have almost made a Second Reading speech but I think that we have got into that situation already.
§ Viscount Caldecote
There is an important sentence in the report of the Select Committee on the Single European Act which I should like to read to Members of the Committee and then make one or two comments. The report says:This streamlining, if successful, will increase the extent of Community law and thus Community competence—that is, the area subject to Community law rather than national law—at the expense of Member States.It happened that I was listening to the "Today" programme this morning on the BBC when the Prime Minister was being interviewed. In her usual forthright way she said that we must fight for what we want to retain, and in particular we must fight for the freedom we have in this country under the law of the land and the common law administered by our judges. I paraphrase because I did not take it down, but that is more or less what she said. I agree with that. The noble and learned Lord, Lord Denning, has made clear to us that those freedoms are very important. The noble Lord, Lord Gladwyn, and other noble Lords have tried to frighten us with the idea that there is no alternative but to pass this Bill as it is and not to amend it. I do not take that view. If we believe it is right to amend it, then it should be amended and returned to the other place.
I do not believe that the Bill was fully considered in another place. It was guillotined. I am more certain still that the great British public do not know, or fully realise, what is being done in their name. If the people want this change to lose further sovereignty, so be it. There may be strong arguments in favour of it, and it is a highly complex and difficult matter, but I do not believe that the British public, as a whole, fully appreciate what is being done in their name. If there were ever a case for this Committee passing an important amendment, such as Amendment No. 42 in the name of the noble and learned Lord, Lord Denning, and so returning the Bill to another place for further consideration and giving time for public opinion to form, I believe that this is one of those cases. In spite of what has been said, I believe very fervently, or I would not be standing on my feet today, that more time should be given for public opinion to form. I therefore support Amendment No. 42.
§ 4.30 p.m.
§ Lord Houghton of Sowerby
In view of the trend of this debate, and the absence of speeches from noble Lords, I feel that I must be true to my own firm belief in European unity and the work that I have done towards it over the years, and say that I fully support the Bill and oppose all the amendments. I do this in no proud spirit. I must confess that I have been acutely disappointed at the ambivalence of the Labour Party over their membership of the EC for a number of 261 years. I hoped that the referendum had ended that, but it has not. Indeed our record as a country in the European Community is not a very proud one. I believe that this Bill is as inevitable as it is desirable if the concept of European unity is to go forward. Much that we have heard from the noble and learned Lord, Lord Denning, this afternoon was brought into the debate at the time of our entry in the first place. In large measure this was the note of deep national pain which was expressed by those who will be bewildered and saddened by some strange concept of the monarchy in the world of tomorrow.
However, the completely autonomous state is an obsolescence in the world today. We know that European unity is as essential to prosperity, to peace and to the concept of co-operation throughout the world, as many other associations that we have to make to the same end among other nations. I feel that we must support this Bill. To do anything other than ratify the agreement upon which this Bill rests would be an additional setback to the confidence that our European partners have in this country as a member of the EC. I think that would be a great pity.
We ought now to think of tomorrow and the years to come. It does not lie in the retrospective concept of British history, the sovereignty of the monarch, the sovereignty of Parliament or the sovereignty of Britain. All these have to be put in the pool of the world of tomorrow, if we are to live in amity and prosperity. Otherwise we shall continue the wars, the animosities and the conflicts of the past. In those circumstances, I hope that this Committee can raise its eyes to the ultimate goal of all that we are trying to do in this way and is not misled by the distractions of mechanism and of tiresome detail that may be related to the administration of parts of the European Community.
We do not denounce our legal system because of the delays that occur in getting there and getting justice from it. We have had many complaints about that, but our faith in the system is strong. Our faith in the European system should be strong and it should be adjusted as required. For my part, I register my deeply-held personal conviction in favour of Europe and this Bill, and that absolves me from any disciplines that might otherwise be laid upon me by noble Lords.
§ Lord Beloff
Is it not surprising that from these Benches someone should have endeavoured to quote the Prime Minister in opposition to the principle of this Bill? This Bill is the result of negotiations carried on by the Prime Minister as the senior statesman in Europe, with her colleagues. It is unimaginable that the Single European Act would have been put before us but for the support of the Prime Minister. In an afternoon of topsy-turvy argument it seems to me that to quote the Prime Minister against the principle of this Bill goes very far.
On the other hand, if I may try to reconcile myself with my noble friend, I have some sympathy with the view that the British public are entitled to know about the proposed changes that will be made by the Bill now before us. The fact that this has not been done is, at least, in large measure the result of deliberate actions 262 by the Bill's opponents. When I was quoted by the noble and learned Lord, Lord Edmund-Davies, at least I think it was I who said in the Second Reading debate, that this was a very modest Bill. That is true. It contains a number of provisions of different degrees of importance which modify the arrangements we entered into 13 years ago.
If the opponents of the Bill had produced amendments directed towards those changes alone, even if not successful they would at least have done what they believed to be their duty, that is, they would have enlightened the public as to its contents. However, by producing instead a series of amendments, which, if plausible at all, would relate to an Act which became law in 1972, they have done nothing but further confuse the public mind and have not played the educational role which they say, and perhaps rightly, it is the duty of this Committee to perform. Because of this, I think that inevitably we are having another Second Reading debate, because if amendments to a Bill challenge not only the principles of the Bill itself, but the principles of the preceding legislation on the statute book, what can we do but say: "This is out, noble Lords; this is out"?
§ Lord Kilmarnock
It really was rather extraordinary to hear the noble and learned Lord, Lord Denning, whom we all respect so much, arguing along the lines he did, considering his own distinguished contribution to the assimilation of Community law into the law of the land. Once we joined the Community, and reaffirmed this in 1975, there really was no alternative but to respect the paramountcy of Community law in its proper sphere. It was in this spirit, surely, that the noble and learned Lord forged his judgments in such cases as Macarthy v. Smith (1980) and Worringham v. Lloyds' Bank (1982). But if we want explicit and graphic illustration of the views that the noble and learned Lord, Lord Denning, previously held, and want to set at rest the fears he now strives to raise, we should go back to the case of Bulmer v. Bullinger (1974) when the noble and learned Lord said. [All England Law Reports 1231H]:The treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the treaty. But when we come to matters with a European element the treaty is like an incoming tide. It flows into the estuaries and rivers; it cannot be held back. Parliament has declared that the treaty is hereafter to be part of our law.".None of that has changed. Today we see that tide in the estuary just as was then envisaged by the noble and learned Lord. We are simply asked to ratify what the Government have already put their hand to—that is, to enable some decisions to be taken by majority vote and to improve the speed of rulings relative to a number of articles in the commercial sphere, which was referred to by the noble Baroness, Lady Elles, while reserving sovereignty on issues of major need as defined in Article 36 of the Treaty—that is to say, matters such as public health, morality, environment and terrorism.
Finally, let us put this in perspective. the Single Act is merely the residue of a much more ambitious draft Act of Union to which we did not put our signature and to which my noble friend Lord Gladwyn referred. This represents no more than the lowest common 263 denominator on which the Council of Ministers has been able to agree to make Europe a more effective trading community, and which, incidentially, as I understand it, has the full backing of the CBI. Surely it would be a retrograde step, and one against both our treaty obligations and our economic interests, to pass any of these amendments. I urge the Committee to reject them.
§ Lord Hughes
When the noble and learned Lord, Lord Denning, made his speech he said that if anyone had only the Bill and the amendments he could not possibly understand what this was about. As these are the only documents that I have, if I have the matter wrong, I must plead that in my defence. However, I do not think that I have got it wrong because of consultations which I have had in the interval. When the noble and learned Lord, Lord Denning, constantly referred to the law of "England", I thought it was just the usual mistake which people made when they meant the United Kingdom, and that they thought the two were the same. However, I lost that idea when the noble and learned Lord read Amendment No. 42. The noble and learned Lord read it in its entirety and I shall repeat the subsection (2):In lieu of the jurisdiction of any such attached court, every British subject"—not every English subject—resident in the United Kingdom and owing allegiance to Her Majesty the Queen shall be entitled to the protection of Her Majesty, according to the law of England, administered by Her Majesty's Judges, sitting in the Royal Courts of Justice under the Rules of the Supreme Court".I realised then that when the noble and learned Lord said "England" he was not making a mistake, and that he was talking about the law of England. Therefore, being totally ignorant on legal matters, I took the precaution of having a few words with the noble and learned Lord the Lord Advocate. I asked whether I was right in thinking that if this amendment were agreed to, the judges in Scotland would be of no importance whatever. The reply of the noble and learned Lord the Lord Advocate could not have been stronger; he said that this was entirely contrary to the Act of Union.
Given the fact that the noble and learned Lord, Lord Denning, has raised the matter as a constitutional issue, I cannot imagine a greater constitutional impropriety than for the noble and learned Lord, by a single amendment to a Bill which he does not like in any event, to tear up the Act of Union as it affects the legal system of Scotland. Whatever else may happen, I am quite certain that no Scot present in this Committee could possibly vote for Amendment No. 1. If voting for Amendment No. 1 implies a commitment to Amendment No. 42, then I cannot vote for any of the damned amendments!
§ 4.45 p.m.
§ The Duke of Portland
Being, I believe, the only person still alive who participated in the Locarno Conference of 1925, which may be regarded as the first serious effort to bring together the people of Western Europe—I was Secretary to the British Delegation—I venture to address the Committee. 264 The first objective of that conference was to bring Germany back into the comity of Western Europe after the 1914–18 War and to bring the nations of Western Europe closer together. The statesmen who took part in the discussions at Locarno fully realised that any organisation for cohesion was a long-term objective, but it was an objective that they all had in mind under the leadership of two real statesmen in foreign affairs, Austen Chamberlain and Aristide Briand.
The seizure of power by Hitler put this rather utopic idea out of the picture, but in due course it reappeared very tentatively when the European Steel and Coal Community was founded in Luxembourg. This was followed by Monsieur Monnet's proposal for the European Economic Community, in which, unfortunately, His Majesty's Government did not believe and thought that participation might seriously damage our close relations with the United States and the Commonwealth. Had we taken part in the early negotiations for founding the European Economic Community, it might have been possible to give this organisation a form better suited to our needs. For 36 years the Community has battled on, and the document before the Committee comprises the amendments which have been found necessary after years of experience.
The allegation that Her Majesty's Government are pushing through the measure now before the Committee in a somewhat clandestine manner is to my mind rather far-fetched. The Single European Act was submitted to the House of Commons in December last, reported on by the House of Commons Foreign Affairs Committee in June this year, passed after debate in the House of Commons in July this year and given a First Reading in your Lordships' House on 10th July, the Select Committee on the European Communities having submitted its report on 6th May last.
That this measure has aroused limited public interest is not the Government's fault. I have read little in the press on this subject and television debates have been few. We are now asked to postpone further consideration of this Single European Act in order to give the public an opportunity for full consideration of the implications of this measure. This measure is only the natural outcome of our joining the European Economic Community, and, while it imposes certain limitations on our freedon of action, on the other hand it increases the efficiency of the Communities' mechanism and affords the elected Parliament a measure of real power.
From what I have seen and heard of the Parliament, this body does not fill me with admiration, although, charged with some responsibility, it may well improve. Moreover, the new procedure is heavily circumscribed so that all decisions will be left to the Council of Ministers. Should the Committee decide to postpone this measure, I very much doubt whether it would have much effect on public feeling, but abroad it would be viewed with dismay and I fear, a measure of contempt.
§ Lord Denning
I fear that I have not made myself clear. I cannot have done so because it is a trick of advocacy to put on your opponent's lips an argument 265 which he has not put forward and then to destroy that argument. Perhaps I should say that I have never sought in any way whatever to wreck the Common Market or European law. To attribute to me any desire to wreck it or to impede it in any way is a complete misconception.
All I have done and suggested in my Amendment No. 42 is to let the Community law remain, let it continue and, to use a metaphor, flow over England; let the Community law be there. Let the Community remain intact. All I have said is that if British subjects are affected by it, let the dispute be decided in a British court: that is all. In adhering to their law and everything in the Community I have only said that I agree and would affirm all the rights of Englishmen, but I do not want them to go against European law.
The Committee has to remember, and I have said in judgments, that Community law is part of the law of England. When any case comes before the British courts it has to be enforced, just as with our law of England, because it is part of our law. I am not against Community law or any of the legislature. I am merely suggesting almost a procedural matter: when there is a dispute between two great English companies about whether there has been unfair competition, or whether there has been an abuse of a dominant position, they need not go to Europe for it to be decided; let it be decided by the British courts. That is quite clear in subsection (3) of my amendment:a like jurisdiction shall be exercised by Her Majesty's Judges also to decide them according to Community Law".Please do not misrepresent my argument. Please do not think I am attacking the Community, its law, its machinery or anything at this stage. All I am saying is that in a dispute between two British subjects. even according to Community law, we should not necessarily send them overseas but let them go, as they have for centuries, to Her Majesty's judges to decide.
I am afraid that many of the criticisms lodged against this small amendment were mistaken in that they attributed to me arguments and views which I have never held. I support the Community and Community law, as always. I just want our British subjects, when a dispute affects them, to be able to come to our Royal Courts of Justice.
§ Lord Hughes
When the noble and learned Lord, Lord Denning, came to the word "British" he waved his hand towards me. Does that mean that he intends to reword Amendment No. 42?
Lord Bruce of Donington
I have not so far taken any part in this controversy that seems to have broken round this series of amendments. Perhaps I should inform your Lordships that I shall decline to be inhibited from what I have to say by any noises off from a sedentary position by those who have not addressed themselves to the essence of the amendments.
My task today is to endeavour to explain and inform. I do not propose to take any part in the partisan debate that seems to have developed as to whether the EC is a good thing or not. This is not the point of the amendments and is not the point of the 266 argument that has been put forward by the noble and learned Lord, Lord Denning. I was very pleased indeed that out of the many speeches that fell from the lips of your Lordships at least two of them addressed themselves to the matters the noble and learned Lord. Lord Denning, was endeavouring to lay before the Committee. I should like to say with all due deference to the noble Lord, Lord Gladwyn—for whom I have a profound personal respect and whose experience I very much admire—that it is not part (at any rate in my view: the Committee may think otherwise) of a debate on the merits of essentially legal amendments to start out into the broad general discussion that any amendment would automatically kill the treaty and inviting the Committee to reject them all on purely emotional and obviously shaky grounds. This does not seem to get us very far at all.
Some observations have been made about the Continental legal system. Reference has been made to the courts of first instance. The noble Baroness, Lady Elles, referred to it in connection with the competition laws that are enforced under the direct authority of the Commission. What possibly may not be realised in the United Kingdom is that the Commission itself in competition cases acts as a court of first instance and does not behave in any similar way to a court of first instance in this country. The Commission brings the case against the companies concerned. It summons the companies to attend, the proceedings are alleged to be informal and they are partly formal and partly informal. There is no possibility of producing witnesses and having them examined under oath so that their evidence may be proved, as in the case of courts in the United Kingdom.
§ Lord Campbell of Alloway
There is a hearings regulation and there is a full procedure for an oral hearing. Although there is something to be said for the criticism, it is wrong to overstate it.
Lord Bruce of Donington
I am most grateful to the noble Lord, Lord Campbell of Alloway, who always puts his points very persuasively. I can only say that my experience is the opposite. I cited to the Committee, and I was not challenged by the Minister, the famous case of the Hasselblad company. If the Committee reads through the reports on that case, they will be shocked because the Commission heard the case, imposed the fine and the appeal went to the European Court of Justice.
It may not always be realised, especially those of us who are familiar with the procedure in the British courts, that the business of establishing evidence and hearing arguments in the European Court of Justice (I am not criticising, I am merely saying that it is different) is not the same as we have in the United Kingdom. The cases are submitted to the court by way of written depositions from the Commission, from the parties and very often from the governments concerned. They are then considered by the Judge Advocate or by the advocate advising the court who then prepares an advice for the court as such. The court then proceeds to oral hearing for the delivery of oral arguments. 267 This procedure might possibly appeal to members of the British Bar, but I am not sure because I am given to understand, especially by those who occupy august positions in the law, that daily refreshers are very welcome, particularly for those who are Queen's Counsel, let alone the juniors. So they may not take kindly to the procedure in the European Court of Justice whereby, in advance, the amount of time to be spent on a particular case is laid down from the commencement, and the registrar says, "This case is going to take two hours". However eloquent the arguments, however contested the various legal arguments may be, that is the time. This is not the same as in the British courts. The sole argument this afternoon should have been as to whether we wish the sovereignty of people in the United Kingdom to be infringed in any way by the operation of the European courts themselves. This is the issue. It is no question of—
§ 5 p.m.
§ Lord O'Hagan
Is the noble Lord saying that he wishes to repeal the European Communities Act 1972 and that this country should immediately leave the European Community?
Lord Bruce of Donington
That raises a point that I was not going to deal with unless I was reminded of it. However, I am glad that the noble Lord, Lord O'Hagan, has raised it because the 1972 Act of accession was passed and, as was said, was approved by a majority in the subsequent referendum on the specific undertaking which will become the subject of a later amendment (which I hope will be discussed resolutely when we arrive at it) on the basis that any British national interest was fully protected. The 1972 Act was passed and confirmed in 1975 exactly on the basis that the national interest would always be protected by the veto. That is the difference between then and now: because now we have the experience that the veto is useless.
I have no desire to go down that road. I want merely to deal with the particular arguments which have been put forward on the legal side. I was particularly grateful for the intervention of the noble Lord, Lord Caldecote, who, in my view, whatever derisory noises were made throughout some sections of this Chamber, put the point of view quite correctly that the British public have not been informed about the full import of this Bill. I decline to accept the proposition put forward by the noble Lord, Lord Beloff, that it is somehow due to those who are putting down amendments to this Bill that public confusion has arisen.
There is no public confusion about it. Until the last three days the Government might have issued a D-notice against the media and against the press because it has not even been mentioned until the past two or three days. When the noble Lord, Lord Beloff, has been with us a little longer he will know perfectly well that not all amendments are put down for the purpose of being contested in the Lobby. It is the one way of eliciting the information that is required or ought to be required by the Committee and it is one way of eliciting information by the replies that come from Ministers as to what exactly is the purport of the Bill.
§ Baroness Elles
I would be most grateful if the noble Lord were to give way. Would he accept that on the whole the media deal only with bad news and that perhaps they thought that the Single European Act was good news for the British people.
Lord Bruce of Donington
The noble Baroness invites me to share in or comment upon her subjective emotions. I am not really in a position to do that. I am not talking about good news or bad news although I am bound to say, as the noble Baroness tempts me—and I have not detained the Committee for very long although I think the noble Lord, Lord Gladwyn, also is now tempting me to do so—that, if it is the noble Baroness's wish or the wish of noble Lords that I should detain the Committee then, so long as I remain within the rules of order and so long as what I have to say is relevant and directed to the Bill, I am delighted to comply with the opportunity and shall do so at the slightest invitation. So let us have no nonsense about that.
I am not concerned with whether this is good news or bad news but the noble Baroness tempts me here and I shall depart from the amendment for one brief moment only—unlike practically all the rest of the Members of the Committee who have spoken who departed from the amendment totally from the beginning of our discussion of it. I shall say this: that within the next year, in fact within the next months, we are going to have bad news in this country. We are going to have very bad news indeed. Unless we are very careful, we are nearing one of the greatest national crises in financial and economic terms that we have experienced for a very long time. The noble Baroness has brought me to the point.
That is my view—and I wish to do everything possible in conjuction with our European allies and with our American allies and with any allies that we can get; for I am all for co-operation on a willing basis. But the time is coming when we shall have to take independent decisions in this country in the interests of the citizens of this country. When that occasion arises, perhaps the noble Baroness will remember that it was some of us here who urged that we should look after, first of all, our own national purposes, our own national unity and retain our own national resilience in dealing with the problems from which we shall probably suffer to a far greater extent than a number of countries that are more favourably placed.
I am sorry to have detained the Committee for three minutes for that peroration—but I think that it was called for—from some of what I may describe with, respect, Second Reading speeches that we have had this afternoon which were unrelated to the particular amendment. I invite the Committee to support the amendments which have been moved by my noble and learned friend Lord Denning.
§ Baroness Young
I hope that even the noble and learned Lord, Lord Edmund-Davies, will feel at the end of the debate on Amendment No. 1, which has now lasted 89 minutes, that we have had a very fair and complete discussion of the issues involved. That has always been my wish, as it has been the wish of the Government, and I am very glad that we have heard from so many Members of your Lordships' House. 269 May I start by referring to the noble Lord, Lord Bruce of Donington, and say that I was very grateful to him for his agreement on the grouping of amendments. I think that it is helpful in this connection that we are able to speak to the group of amendments on the court of first instance.
Perhaps I may say to the noble and learned Lord, Lord Denning—and like every other Member of your Lordships' House, I share in the admiration of his distinguished legal career and in the affection in which he is held not only in this House but outside—that I agree that it is a complex piece of legislation.
I am not a lawyer but, in the course of my political life, I have had a lot of experience in having to take Bills through the House either in government or in opposition. and I have never found this anything but a difficult matter. On this occasion it was difficult but no more difficult than many other Bills before this Chamber. In almost every case, you pick up the Bill, you pick up the amendments and you find that the first thing you have to do is to look to see to what the Bill refers—which is usually another Act of Parliament. In this case, it is the Single European Act and of course we have had the great good fortune of the benefit of the numerous, very valuable Select Committee reports from the House.
Yes, it is complex; but I believe that we have had ample opportunity to discuss it, as we did in another place. I am sure that all who have taken part in debate when the occasion has presented itself have tried to explain the matters that are involved in this Bill to the British people; because, as my noble friend Lady Elles has said, they are good news for the British people. It will be much to their advantage, and in the course of these debates I shall spell this out.
I also answer the point made by the noble Viscount, Lord Caldecote—which was well answered, if I may say so, by my noble friend Lord Beloff—by repeating the view of my right honourable friend the Prime Minister of this Bill. I quote what she said in another place on 5th December 1985 when she reported on the agreement on the Single European Act which was reached last year. She said at col. 430 of the Official Report:they [the changes] will be an important step towards enabling this country to realise more fully the benefits of our membership of the European Community".Let me also say how grateful I am to the noble Lord, Lord Nugent, for drawing our attention to the valuable contribution made by the noble and learned Lord, Lord Templeman, on Second Reading. Most of all, I am pleased that this Bill has received all-party support—from the noble Lord, Lord Gladwyn, for the Liberal Party and the noble Lord, Lord Kennet, for the SDP. We all listened with great interest to the intervention by the noble Lord, Lord Houghton of Sowerby, who spoke from the heart and I think spoke for many of us. I was particularly interested in the intervention of the noble Lord, Lord Hughes, who emerged almost in a skirl of pipes and drums, anxious to set us right about the position of Scotland, including the Act of Union. I should like to thank all my noble friends who have supported the Government in this very important group of amendments before us, to which I now turn.
270 In describing the provisions of the Single European Act as they relate to the proposed court of first instance I start by referring to the report of your Lordships' Select Committee on European Communities on European union, which concluded over a year ago:The Court's workload is already excessive and increasing. The Court has made repeated but unsuccessful requests to the Council of Ministers to reduce its burden by creating special tribunals to deal with the staff and competition cases. The Select Committee believe that the Court should he relieved of the obligation to hear such cases at first instance. This would allow it to concentrate on cases which clearly raised issues of general importance".The recommendations for the Select Committee were very much in the Government's mind when we negotiated the provision of the Single European Act covering the proposed establishment of the court of first instance. The workload of the European Court has grown threefold over the last 10 years, and my noble friend Lady Elles gave us some very impressive figures of the workload over the last six months. Between 1983 and 1985 the number of cases nearly doubled and more than half of those concerned the terms and conditions of staff employed by Community institutions.
It makes sense to relieve the European Court of Justice of the burden of hearing these cases. The court of first instance will be able to take on that burden but—and this is a very important point—it will not take on new work. Let me make that quite clear. And nor will it have new powers. I hope this answers satisfactorily the point raised by the noble Lord, Lord Somers. It will not hear cases brought by member states; it will not hear cases brought by the institutions of the Community; and it will not hear cases referred to the European Court of Justice by national courts such as the cases to which the noble and learned Lord, Lord Denning, referred at Second Reading: the Conegate and Marshall cases.
Indeed if I might just turn to Amendment No. 40 in this group, that is one of the matters which are all specifically excluded from the jurisdiction of the new court by the Single European Act. The maximum extent of its jurisdiction would be those cases which individuals and companies can under the present rules take directly to the European Court. There will in any case be a right of appeal on points of law from the court of first instance to the European Court. I hope the Committee will agree that this is a necessary practical improvement in the operation of the court.
I now turn to Amendment No. 7. Concern has been expressed at the provision in Article 12 of the Single European Act which allows the Council, acting unanimously, at the request of the European Court of Justice to amend the provisions of Title III of the Statute of the European Court. Concern has been expressed that this is a constitutional innovation providing for the Council to amend the Protocol to the Treaty of Rome without reference to the parliaments of member states.
That view is mistaken on two counts. First, it is not an innovation. The Council can already, under the existing treaties, increase the number of judges and advocates-general and make consequential amendments to the Statute of the European Court, and so this position is in line with existing provisions. Moreover, Title III of the Protocol on the Statute of 271 the European Court deals only with the court's procedures and not with its substantive powers, composition or organisation. It deals with such issues as the conduct of hearings, who signs the judgments of the court and how costs are awarded. There can be no question of the powers of the court being changed under this provision. Such substantive changes could be made only by amendment to the treaty, requiring not only the unanimous agreement of member states but also the consent of national parliaments. This is a very important point to understand over the whole question of the extension of some kind of sovereignty of the European Court.
Some Members of the Committee have expressed concern that the reference in the Bill to any court which might be attached to the European Court of Justice implies that more than one subsidiary court could be created. That again is a misunderstanding of the reasons why the Bill is drafted in that way. The Single European Act does not itself establish the court of first instance. It enables the Council, acting unanimously, to establish such a court on a proposal by the European Court of Justice. No such formal decision has yet been taken, nor indeed could it be taken until the Single European Act is in force. It is therefore premature to talk about "the court" since the court of first instance does not yet exist. It does not have a name. "Any", therefore, is the correct term in the circumstances.
I turn now to Amendment No. 42. The noble and learned Lord, Lord Denning, has proposed in that amendment a new clause. The first subsection provides that the court of first instance should not sit in the United Kingdom or exercise any jurisdiction over the citizens of the United Kingdom. Since the court of first instance would be attached to the European Court, it is logical that it will sit in the same place; that is, in Luxembourg.
As to its jurisdiction, that will be no greater than the existing Court of Justice. But it would be quite contrary to the terms of our membership of the Community to suggest that the court of first instance should have no jurisdiction over citizens of the United Kingdom where the application of Community law is concerned. The European Court has such jurisdiction already and, as many have pointed out, the arguments advanced are 14 years too late.
The effect of this amendment would be to deny access to the court of first instance by British citizens who are servants of the Community and wish to bring a case against a Community institution and by individuals wishing to challenge decisions by the Commission in application of the competition policy. I am quite sure that the Committee would not wish to deny British citizens a forum in which to bring actions to enforce their legal rights and challenge executive decisions.
Let me turn now to subsections (2) and (3) of Amendment No. 42. The noble and learned Lord's proposed new clause appears to reflect the fears that he expressed at Second Reading: namely, that the new court would take over the jurisdiction to apply Community law currently exercised by the domestic courts of this country. I am glad to say that this fear is groundless. The new court's powers and jurisdiction 272 are to be carved entirely out of the existing powers and jurisdiction of the European Court of Justice. It will not in any way take away the powers now exercised in this field by our domestic courts. The precise extent of its role remains for decision by the Council, acting unanimously. In no circumstances could its powers be greater than those the European Court of Justice already has.
Finally the noble Lord, Lord Bruce, put down Amendment No. 41, which would require the Government to lay before Parliament a report concerning the constitution, powers, personnel and activities of all courts attached to the European court. I believe this is an unnecessary requirement. The library of your Lordships' House already receives the official journal containing a summary of judgments of the European Court and copies of the weekly bulletin of proceedings of the court. The full particulars of a case are always available for the Treasury Solicitor's Department. We would expect the same procedure to be followed in the case of the court of first instance. I doubt whether an additional procedure is necessary, given that the court of first instance will have no new powers and will not be hearing classes of case not already heard in the European Court of Justice.
I have spoken at considerable length and I hope in a way which makes clear to the Committee why I cannot accept Amendment No. 1 or indeed the others grouped with it concerning the court of first instance. The noble and learned Lord, Lord Denning, spoke very eloquently to his amendments, if I may say so, on a number of issues which run contrary to the Treaty of Rome to which we acceded in 1972.
In his subsequent winding-up remarks the noble and learned Lord said that he had been misrepresented as saying that he was against Europe and that this was quite all right because it was only a procedural matter. I am not a clever lawyer like him, but I noticed in today's Daily Telegraph that he is quoted as saying that the purpose of the Bill before the House was to:transform Europe into a single nation with its own Parliament and its own legislation making its own law called community law".If that is not his intention, I hope that in the interests of all your Lordships he will make it quite clear and perhaps write to the Daily Telegraph to correct what is clearly a misreport. However, if that is his concern, I hope that he will recognise that many of us in this Chamber—and I think I speak on behalf of all parts of the Committee—see this as a very important matter.
I conclude by saying why I think this Bill is so important. It is important because the Single European Act is about helping business and creating new employment; it is about making Europe competitive; it is about speakqing with one voice on foreign policy. If we were to take a different view we should not only be turning our backs on all we advocated in the past but we should be doing a massive disservice to the people of our country. This House has always led the way in wanting to make a success of our membership of the Community. Let us take our time and consider in detail these amendments. However, I hope that when the Committee has considered them it will accept the Bill. It furthers our aims in the Community, furthers our aims as a country and fundamentally helps all the people of this country. We need to see this Bill on the statute book.
§ The Deputy Chairman of Committees (Lord Cullen of Ashbourne)
Does the noble and learned Lord wish to speak?
§ Lord Denning
I meant to speak a moment or two before. I do not know whether the Committee gives me leave.
§ Lord Denning
I was going to say that I was grateful to the noble Baroness for saying how good it was to group these amendments together. My only comment is that she gave explicit assurances as to what is going to happen, which are welcome. I only say that her interpretation and ours do not matter. The interpretation is for those in the European Court of Justice and I only hope they will abide by the assurances which she has given to us. However, I feel this is such an important matter that I should like to test the opinion of the Committee.
§ 5.25 p.m.
§ On Question, Whether the said amendment (No. 1) shall be agreed to?
§ Their Lordships divided; Contents, 52; Not-Contents, 176.274
|DIVISION NO. 1|
|Beswick, L.||Liverpool, E.|
|Blyton, L.||Longford, E.|
|Briginshaw, L.||McCarthy, L.|
|Brockway, L.||Molloy, L.|
|Brooks of Tremorfa, L.||Monson, L.|
|Bruce of Donington, L.||Moran, L.|
|Caldecote, V.||Mountevans, L.|
|Carmichael of Kelvingrove, L.||Mulley, L.|
|Cledwyn of Pehrhos, L.||Munster, E.|
|Cross, V.||Phillips, B.|
|David, B.||Ponsonby of Shulbrede, L.|
|Dean of Beswick, L.||Prys-Davies, L.|
|Denning, L.||Ross of Marnock, L.|
|Erroll, E.||Sefton of Garston, L.|
|Fisher of Rednal, B.||Shannon, E.|
|Fitt, L.||Stallard, L.|
|Galpern, L.||Stoddart of Swindon, L.|
|Graham of Edmonton, L.||[Teller.]|
|[Teller.]||Taylor of Blackburn, L.|
|Gray, L.||Taylor of Mansfield, L.|
|Hartwell, L.||Underhill, L.|
|Jeger, B.||Wallace of Coslany, L.|
|Jenkins of Putney, L.||Wedderburn of Charlton, L.|
|Kagan, L.||Wells-Pestell, L.|
|Kirkhill, L.||Whaddon, L.|
|Lawrence, L.||Williams of Elvel, L.|
|Leatherland, L.||Wilson of Rievaulx, L.|
|Airedale, L.||Boardman, L.|
|Aldington, L.||Bolton, L.|
|Alexander of Tunis, E.||Bonham-Carter, L.|
|Allen of Abbeydale, L||Boyd-Carpenter, L.|
|Alport, L.||Brabazon of Tara, L.|
|Ampthill, L.||Brentford, V.|
|Banks, L.||Brookes, L.|
|Beaverbrook, L.||Brougham and Vaux, L.|
|Belhaven and Stneton, L.||Broxbourne, L.|
|Beloff, L.||Bruce-Gardyne, L.|
|Belstead, L.||Buckinghamshire, E.|
|Bessborough, E.||Buckmaster, V.|
|Butterworth, L.||Layton, L.|
|Caccia, L.||Long, V.|
|Cameron of Lochbroom, L.||Luke, L.|
|Campbell of Alloway, L.||Mackie of Benshie, L.|
|Campbell of Croy, L.||Macleod of Borve, B.|
|Carnegy of Lour. B.||McNair, L.|
|Chelmer, L.||Manchester, D.|
|Chelwood, L.||Margadale, L.|
|Chitnis, L.||Marsh, L.|
|Coleraine, L.||Marshall of Leeds, L.|
|Constantine of Stanmore, L.||Maude of Stratford-upon-|
|Cornwallis, L.||Avon, L.|
|Craigavon, V.||Mayhew, L.|
|Craigmyle, L.||Merrivale, L.|
|Craigton, L.||Mersey, V.|
|Cranbrook, E.||Molson, L.|
|Croft, L.||Monk Bretton, L.|
|Cullen of Ashbourne, L.||Montague of Beaulieu, L.|
|Dacre of Glanton, L.||Morris, L.|
|Davidson, V. [Teller.]||Mostyn, L.|
|De La Warr, E.||Mottistone, L.|
|Denham, L. [Teller.]||Moyne, L.|
|Derwent, L.||Newall, L.|
|Diamond, L.||Nugent of Guildford, L.|
|Dilhorne, V.||O'Brien of Lothbury, L.|
|Donaldson of Kingsbridge, L.||O'Hagan, L.|
|Dulverton, L.||Orr-Ewing, L.|
|Eccles, V.||Pender, L.|
|Eden of Winton, L.||Perry of Walton, L.|
|Elles, B.||Peyton of Yeovil, L.|
|Elliot of Harwood, B.||Plummer of St Marylebone, L.|
|Elliott of Morpeth, L.|
|Elton, L.||Portland, D.|
|Ezra, L.||Portsmouth, E.|
|Faithfull, B.||Reay, L.|
|Fanshawe of Richmond, L.||Reigate, L.|
|Ferrers, E.||Reilly, L.|
|Fortescue, E.||Rhodes, L.|
|Fraser of Kilmorack, L.||Ritchie of Dundee, L.|
|Gainford, L.||Rochdale, V.|
|Geddes, L.||Rodney, L.|
|Gisborough, L.||Romney, E.|
|Gladwyn, L.||Russell, E.|
|Glenarthur, L.||Sainsbury, L.|
|Gormanston, V.||St. Aldwyn, E.|
|Gray of Contin, L.||St. Davids, L.|
|Greenhill of Harrow, L.||Salisbury, M.|
|Grey, E.||Saltoun of Abernethy, Ly.|
|Grey of Naunton, L.||Sandford, L.|
|Grimond, L.||Seear, B.|
|Grimthorpe, L.||Seebohnm, L.|
|Hailsham of Saint Marylebone, L.||Shackleton, L.|
|Halsbury, E.||Shepherd, L.|
|Hampton, L.||Stedman, B.|
|Hankey, L.||Stewart of Fulham, L.|
|Hanworth, V.||Strathcarron, L.|
|Harris of Greenwich, L.||Swann, L.|
|Hemphill, L.||Terrington, L.|
|Henderson of Brompton, L.||Thorneycroft, L.|
|Hesketh, L.||Thurlow, L.|
|Hives, L.||Tordoff, L.|
|Holderness, L.||Trefgarne, L.|
|Hooper, B.||Trenchard, V.|
|Houghton of Sowerby, L.||Trumpington, B.|
|Howie of Troon, L.||Vinson, L.|
|Hughes, L.||Vivian, L.|
|Hylton-Foster, B.||Walston, L.|
|Ingrow, L.||Ward of Witley, V.|
|Kearton, L.||Whitelaw, V.|
|Kennet, L.||Wilberforce, L.|
|Kilmarnock, L.||Willoughby de Broke, L.|
|Kinloss, Ly.||Winstanley, L.|
|Kinnaird, L.||Winterbottom, L.|
|Kitchener, E.||Wolfson, L.|
|Knollys, V.||Young, B.|
|Lane-Fox, B.||Young of Dartington, L.|
§ Resolved in the negative, and amendment disagreed to accordingly.275
§ 5.36 p.m.
Lord Bruce of Donington
moved Amendment No. 2:Page 3, line 13, after ("Communities) "), insert ("but not Articles 6 and 7 thereof").The noble Lord said: I beg to move Amendment No. 2 on the Marshalled List, standing in my name and the names of my noble friends, which seeks to delete Articles 6 and 7 of the Single European Act. Before asking the Committee to arrive at a decision on this matter, I shall venture, if I may, to inform noble Lords of the effect on the Treaty of Rome of Article 6. In the first instance, it seeks to amend Article 7 of the Treaty of Rome, which is one of the first series of articles forming the foundations of the Community.
The new Article 7, as amended by paragraph 2 of Article 6 of the Single European Act, will read as follows:Within the scope of application of this treaty and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The Council may on a proposal from the Commission and in co-operation with the European Parliament adopt by a qualified majority rules designed to prohibit such discrimination.Since this is the first time within the context of the present Bill that majority voting has been referred to, and so that I do not have to refer to it again, it ought to be explained that the voting provisions following the accession of Spain, Portugal and Greece differ very considerably from those previously obtaining. There are a total of 76 votes available, out of which the United Kingdom has 10 and the other countries at the moment have as follows: Belgium, 5; Denmark, 3; Germany, 10; Greece, 5; Spain, 8; France, 10; Ireland, 3; Italy, 10; Luxembourg, 2; the Netherlands, 5; Portugal, 5. So the Committee will understand that the United Kingdom needs at least one other major state holding 10 votes—at least one major state and two others—in order to be able to avoid something being carried by a qualified majority.
Before this Bill was brought forward, Community voting was on that basis. Quite naturally, one has taken the continuation of this proportionate voting very much for granted. I shall not be talking about this again, but every time a qualified majority is referred to perhaps noble Lords will remember what I have said because it will save time. If all the votes of the 12 were to be redistributed on the basis of populations as distinct from the previous slightly arbitrary way, the United Kingdom would have 13 votes; Germany would have 14 votes; France would have 13 votes; Italy would have 14 votes; Belgium would have two votes; Denmark would have one vote; Greece would have two votes; Spain would have nine votes; Ireland would have one vote; Luxembourg would have one vote; the Netherlands would have two votes; and Portugal would have two votes. That would bring a drastic alteration in the balance.
At the moment, the United Kingdom, with a population greater than that of Belgium, Denmark, Greece, Ireland, Luxembourg and the Netherlands combined, has 18 fewer votes than those countries combined. It is for consideration—and I am putting it no higher than that—when we come to consider later aspects of majority voting that this revision ought to be looked at by the Council at its next meeting or ought 276 to be considered by the European Council or heads of state. I put this forward not in controversial terms but as a matter of which the Committee should be aware. At the moment, the voting system is unfair, on the basis of population, to the position of the United Kingdom.
Article 6 refers to Article 49 of the Treaty of Rome. Article 49 is in that section of the treaty—Title III of the Treaty of Rome—providing for the free movement of persons, services and capital. After amendment, the first paragraph of Article 49 will read as follows:As soon as this Treaty enters into force the Council shall, acting by a qualified majority on a proposal from the Commission in co-operation with the European Parliament and after consulting the Economic and Social Committee, issue directives or make regulations setting out the measures required to bring about by progressive stages freedom of movement of workers as defined in Article 8 in particular".To save time, I shall not read the remainder of Article 49, but what I have read should be sufficient to give the Committee the concept of the effect of the amendment of the statute itself.
Paragraph 4 of Article 6 refers to Article 54 of the Treaty of Rome. The Committee will recall that Article 54 deals with freedom of establishment in the Community. This paragraph of the proposed Article 6 amends paragraph 2 of Article 54. It will now read:In order to implement this general programme, or in the absence of such a programme in order to achieve a stage in attaining freedom of establishment as regards a particular activity"—this is the point that is put in—the Council shall, acting on a proposal from the Commission in co-operation with the European Parliament and after consulting the Economic and Social Committee, issue directives acting unanimously until the end of the first stage and by a qualified majority thereafter".I trust that that will enable the Committee to see some of the impact of paragraph 4 of Article 6.
In Article 56 of the Treaty of Rome—this is also in the same section of the rules of establishment in the Treaty of Rome—the Single European Act proposes an amendment. This is the article which provides for the special treatment of foreign nationals. Paragraph 2 of Article 6 will now read:Before the end of the transitional period the Council shall, acting unanimously on a proposal from the Commission and after consulting the Assembly, issue directives for the co-ordination of the aforementioned provisions laid down by law, regulation or administrative action".The new words put in by the Single European Act read:After the end of the second stage, however, the Council shall, acting by a qualified majority on a proposal from the Commission and in co-operation with the European Parliament, issue directives for the co-ordination of such provisions as in each member state are a matter for regulation or administrative action".Paragraphs 6 and 7 follow very similar lines and in each case insist on the co-operation of the European Parliament.
I pass no comment on these amended articles to the Treaty of Rome, and I have reproduced them merely so that the Committee may be aware exactly how the position stands after these amendments. However, I want to emphasise one alteration which is immediately obvious. Whereas in the past there has been consultation with the European Parliament, the new rules under the Single European Act provide for co-operation. This is a very considerable difference. 277 The difference is dealt with when we come to later amendments, when the whole status and nomenclature used in respect of the European Parliament is discussed and some judgment is passed upon it.
The whole purpose of these articles is quite clear. My noble friend Lord Stoddart will deal with the provisions of Article 7, which lays down the procedure which will be applied by qualified majority, and the amendments to be sent back to the Commission, to the Parliament and up to the Council. These are reasonably clear in the article itself and made even clearer by the contribution of the Committee on European legislation of your Lordships' House.
However, there is a difference. It seems to me, in addition to the titular questions that are posed later in the Bill where we are invited to call the Assembly now, and retrospectively, the European Parliament, that we are taking a step towards recognising as a parliament a body which is not in any way analogous to our own. The name "parliament" in the British language, within our national history, has a special connotation. One does not need to describe the functions of your Lordships' House, but the other place is elected on universal suffrage. It is elected on a district basis. It is elected on a constituency basis which, when changes are made, are established by the Boundary Commission. Persons going to the other place do so with the full authority of those who elected them.
Governments and Ministers have to be chosen from their ranks. Membership of Parliament—in some cases membership of this place—is an essential ingredient for the formation of the government. Governments are chosen from that membership. If for some reason a Minister loses his seat, that is just too bad. Parliament therefore occupies a special place in the United Kingdom. That specifically applies to the other place, but Parliament as a whole is sovereign and in the final analysis Parliament can dismiss its governments.
The European Parliament is on a totally different basis and the use of the term "parliament"—with which later amendments will deal—combined with the new role given to it in this article suggests to us (or, should I say, to me) that this Act is just one further stage towards giving ever more power to the European Assembly; or as it now is, the Parliament.
I had the honour to represent your Lordships' House in the European Parliament during the years 1975 to 1979. That Parliament cannot be compared in any way with this Parliament—either the other place or here—because governments are not chosen from it. It is true enough, particularly after the efforts in the European Parliament of that very prominent Conservative, Sir Peter Kirk, who all of us respected and who did such great work in seeking to enhance its effectiveness, that some kind of Question Time was introduced into the European Assembly, as it then was although it called itself a parliament.
However, one cannot possibly compare Question Time in the European Parliament in Strasbourg with Question Time either in another place or in this House. With the exception, I am bound to say, of Commissioner Tugendhat who represented the United Kingdom when he was there and also the 278 Commissioner for Agriculture who so unfortunately died a few years ago, commissioners did not bother to answer, in the main, the serious questions that were put to them. One cannot therefore compare the Parliaments in any way. No Ministers sit there: only the Commissioners sit on one side and the permanent officials representing the council on the other. When the European Council Members are there they sit in front of them and can address the Assembly.
The European Parliament has none of the cut and thrust of argument as is customary in another place, and even, on occasion, in your Lordships' House. It tends to be more declamatory. To call it a parliament as a corporate entity such as characterises another place, and this place, is taking the word parliament into the realms of fantasy. The European Parliament is nothing of the kind.
I have participated in the European Parliament many times, almost submerged by the cascade of paper that descends on all European Members of Parliament—not a lot of which, I am afraid, is thoroughly read—and been somewhat bemused by it all. If one goes into the chamber—and I think it is the same now at Strasbourg as it was in Luxembourg and in Strasbourg in my time—the attendance is very sparse, except on very few occasions.
The sittings, too, are contrived. They are time limited. For example, the bureau is the management of the place and carries out the same functions as the learned clerks in this House—although I dare hardly mention it in the same breath because they are totally different—and arranges the business of the concern. It fixes the total time for the debates. The Socialist group is allowed, say, 35 minutes; the European democrats, 30 minutes; with perhaps 35 minutes to the Christian Democrats, and so on. There is no sense of occasion as there is in the other place or in this Chamber.
To elevate the European Parliament to the state of any meaningful plane where the mighty diapason of argument can be heard and exchanged across the Chamber, where people can even joke with one another, and to compare that with either this or another place is quite absurd.
I mention this because I do not think it is time to consider taking this other body, which is not a Parliament at all, within the build-up of the progressive organisation that has been so carefully constructed towards the ultimate achievement set out in the Stuttgart solemn declaration of European union and the federal state. I beg to move.
§ Lord Broxbourne
I rise to put a question to the noble Lord but if he has resumed his seat it may be that I am not in order in doing so. Has the noble Lord resumed his seat, or not? If he has not resumed his seat, I shall ask the question. If he has resumed his seat, then I will take advantage of the uncovenated benefit which seems to have fallen to me to address the Committee briefly on the amendment. It is for the noble Lord to say which of those alternatives he finds the less attractive.
Lord Bruce of Donington
So sensitive was I to the mood of the noble Lord that I instinctively gave way the moment that he rose. Therefore I have not 279 technically resumed my seat. I am in eager anticipation of the question that he wants to put to me. I should not like to deny him that if I resume my seat now; so may I remain in a halfway position?
§ Lord Broxbourne
In the case of the noble Lord, that is probably a welcome posture, and an improvement on the more extreme positions which this House is accustomed to hear and admire from him. The question after those preliminaries was: In his lengthy and interesting excursions into the workings of the European Parliament, of which he and I were Members at the same time, does he not think some reference ought to have been made to all the valuable work done in the committees of that Parliament, which is perhaps the main contribution that it made, rather than in the more formal debates in plenary session?
§ 6 p.m.
Lord Bruce of Donington
I welcome that opportunity. I did not want to lengthen my remarks too long by going on to the activities of the Committee. I do willingly concede that a tremendous amount of good work, as work, was done in those committees. In order that I might try partially to disarm some of my colleagues on theAlliance Benches, who seem to think I am hell bent on killing the EC, may I say that during the time when I served on the budget committee, Sir Michael Shaw, a member of this Party in another place, and myself produced the first joint pamphlet on the workings of the financial regulations and the budget committee generally. I am not quite sure whether it is, but I am told that it is still a standing booklet for the preliminary understanding of that matter. I mention the point purely to try to disarm those, in various sections of the Committee who apparently seem to think that during this debate I am trying to argue against the EC. All I am doing is trying to elucidate on it and passing the information, very respectfully, to your Lordships so that you can decide, after hearing the Government's explanation of these matters, whether, in the light of the amendments to the treaty, you wish these particular articles to stand. I am most grateful to the noble Lord for having given me the opportunity.
§ Lord Campbell of Alloway
The point is not whether the noble Lord, Lord Bruce, is intending to break up the European Community, the point is that, if your Lordships carry this amendment, you assuredly would. That is the point. There is no flinching. This amendment deals with institutional provisions under Articles 6 and 7 which are of fundamental consequence. They are the means of implementation of the Bill, and indeed of the SEA, to establish this internal market without trade barriers, tariff barriers, customs delays at ports and frontiers and all the other impediments to the movement of goods and services, establishment, capital and so forth in the Economic Community, which is the main area after all, and, let us face it, to establish our economic growth in the future. The means involved are really changing no more than six articles of the treaty, where there was unanimity required to qualify for majority voting, and 280 introducing, I think, another five into that system of voting. As a result, instead of having 40, which we have today, we would have about 50 or 51 with the Single European Act.
So much seems to be said about parliamentary sovereignty, and rightly so in a way, but in practical terms no Parliament in any of the member states of the European Community wholly retains sovereignty. A measure of the United Kingdom's sovereignty was surrendered in 1972 when we adopted, in theAct of 1972, the fundamental concept of supra-national effect. All that this Bill proposes to do in this context is to amend Section 1 of that Act of 1972, to bring the SEA within Section 2 of that Act of 1972 and to confirm supra-national effect.
But why was this necessary? It was necessary because it was agreed by the Ministers of the member states at the Hague this year that all governments would surrender a small, further measure of sovereignty, a further devolution of power, from their respective parliaments on matters governed by the three treaties, in order to complete this internal market by the end of 1992. Mark this. This very situation ought to have been achieved at the end of the 12 year transitional period in 1969, years before we acceded to the Common Market. That is a situation which cannot be achieved unless the decision-making process were to be unblocked, as proposed by the Single European Act. This was recognised clearly at Stuttgart in 1983. It was accepted without reservation in Milan in 1985, and it was agreed by the Ministers, including our Minister, at the Hague when this SEA was settled.
I conclude by asking: Is it not wholly apparent that, if the Common Market is to retain credibility as a viable institution, these institutional provisions, Articles 6 and 7, to unblock the decision-making process are not only requisite but, in that perspective, reasonable? For those reasons (I hope they are reasons) I invite the Committee to reject this amendment and, with the leave of the Committee, limit the observations to that and not deal with questions concerned with the European Parliament, which, as I understand it, are the subject matter of a later group commitment.
§ Lord Molloy
I hope the House will not take the advice of Lord Campbell of Alloway because it is very dangerous advice. His submissions and arguments on fact are irrefragable. They cannot be questioned because their accuracy is absolute, but are we going to say that the words of any treaty which the United Kingdom enters into will last for a million years, that nothing can be changed? We have no constitution in this nation of ours, but we have changed it on many occasions. I can remember, when I had the privilege to serve as a Member of the European Parliament (I sat in the other place along with my noble friend Lord Bruce) that many of us were amazed because the whole thing was new to us. When we saw commissioners coming in and talking to the Parliament, it was like a Permanent Secretary from the Foreign Office or the Home Office invading the House of Commons. That is how it appeared to us then and that is the situation now.
Let me concede immediately the point that this nation, via a referendum, voted decisively to enter the 281 Common Market. There is no argument about that. I am contesting that it must never be an offence in any way to criticise how it is progressing, or that it must never be an offence for any political party or any government of this country to wish to make changes. I am afraid that that is the attitude which has dominated discussions for the past few years, and I hope that we remember it.
When I served in the European Parliament we had a trump card which I used with effect many times; namely, the argument, "Perhaps you will not listen to what we are saying here in this Parliament but I can go back to the Mother of Parliaments and make a case there, although you refuse to listen to it here". Not only I but several other Members from all the parties did that. That ace card was taken away the moment that we had direct elections. We all know what a farce they are.
I do not suppose that many of the people living in the five or six constituencies which send an MEP to Europe know precisely what the European Parliament is all about. Well, they will have to learn in time because we are approaching a very dangerous situation. Regrettably, I fear that some of us are acquiescing in this dangerous situation and think that it is some form of Lèse-majesté even to criticise the European Parliament and the commissioners who serve it. They serve it well, but they in turn must remember that they are commissioners and they represent no one. We have to take full cognisance of that.
We are moving forward in the European Community, as we must, and I believe that the time has come for us to look very carefully at some of our measures and try to change them. We must look carefully at what is proposed and we must always have the right to endeavour to change it, not only in this Chamber but, I hope, in this British Parliament. Therefore I hope that when our representatives go back to the European Parliament they will take full cognisance of the submissions that have been made in this Chamber, and indeed in the other place down the corridor.
If we sacrifice that right and if we refuse every time to criticise some aspect of the European Community, then we are making a contribution to demoralising and perhaps sabotaging the spirit of democracy that is shared by both this Chamber and the House of Commons down the corridor. I hope that we understand that very clearly and sincerely. It does not mean that we are out to destroy, but that there are some of us who want to improve and, if I may say so in conclusion, to safeguard our democracy, so that it will in no way be threatened by the assumed democracy of any European Parliament.
§ 6.15 p.m.
§ Lord Denning
I shall not take a moment: I want to say only a few words. This Chamber ought to be grateful to my noble friend Lord Bruce for tabling this amendment, because the two articles, Nos. 6 and 7, are really the crux of the new legislative proposals in the European Parliament.
282 This is the very matter about which the Select Committee said:The powers of the United Kingdom Parliament will be weakened by the Single European Act. The Committee draw this important fact to the special attention of the House".That is the matter that is now being brought up, because these two provisions, Articles 6 and 7, bring in a new procedure. I think most people will realise that reform is essential. There has been far too much obstruction and delay because one person against the rest could say, no. There may be obstruction by other nations or by us, but that is something which must be remedied if the Community and its Parliament are to survive. I have no doubt whatever of the importance of that fact.
In addition to the one sentence that I have already read out, the Select Committee also said:But the main impact of the Act will lie in its effect on the voting strength of individual Ministers. Since the United Kingdom Parliament exercises no control over Community legislation other than through the voice and vote of United Kingdom Ministers in the Council of Ministers, any weakening of the power of United Kingdom Ministers is felt equally by the United Kingdom Parliament".Perhaps I may paraphrase that. If it concerns the Council of Ministers it means that the United Kingdom Minister can be outvoted by the qualified majority. Then, when the measure goes to the Parliament, the United Kingdom can he outvoted there. In a way, that will strengthen the powers of the European Parliament. On the other hand. the real question is whether there is any alternative if decisions are to be made by the whole Parliament.
If I may say so, it seems to me that those who drew up these very complicated provisions have done the best that can be done at the moment and therefore I am not against them, though I sympathise with the objections. What is important is that they should be drawn to the attention of this Chamber so that they can be considered and dealt with accordingly.
§ Lord Banks
I should like to oppose the amendment and support the general trend of the remarks of the noble Lord, Lord Campbell of Alloway. As the Committee is aware, Articles 6 and 7 deal with more majority voting in the Council in order to speed up decision-making and the completion of the internal market, and they concern a marginally increased role in consultation for the European Parliament.
When we entered the European Economic Community it was clear that within limited spheres we were going to embark on the pooling of sovereignty with our partners in the Council and some degree of limitation on the national sovereignty of all the partners was accepted. It seems to me that it is impossible through 12 national parliaments to control the Council meeting in secret. Each national parliament has some control over its own Ministers but it cannot control the Council. That is why, on these Benches, we have welcomed any increase in democratic control exercised through the European Parliament.
With more majority voting in the Council, it is true that the United Kingdom will be less able to block the proposals of others; but it is equally true that the United Kingdom will have more chance to secure 283 support for its own proposals. Of course, it is clear that those who never wanted to be in the European Community in the first place regard as anathema increased majority voting and more power for the Parliament. It seems to me, as has been said more than once this afternoon, that they are trying to fight that battle again over this limited advance in the Single European Act. But I do not think that they are consistent about it. They object to more majority voting in the Council because if that happens the United Kingdom will lose the veto in that limited area; but they object also to unanimity being required in the Council to reject any European Parliament amendment which has been accepted by the Commission, because, they say, it would never obtain a majority and someone would always be exercising a veto. They cannot have it both ways.
§ Baroness Elles
I am not exactly certain which amendment we are discussing but I believe that it is an amendment to Articles 6 and 7; so we shall be dealing with the co-operation procedure at the same time. I am most grateful to noble Lords. I should also like to make a comment or two on the European Parliament.
As the Committee will know, for a long time now the European Parliament has been seeking new powers, as of course any democratic body does. I think it would be idle to pretend that that body is not seeking new powers. Nevertheless, I and colleagues in the European Parliament voted against the draft treaty on European union which had been produced by Mr. Spinelli and many other Members of the European Parliament, because I thought that it was asking for powers for which that Parliament was not ready; nor was it in fact capable of bringing to fruition the kind of measures on which it would have been voting and possibly taking a co-decision with the Council.
I must confess that I strongly support the way that the co-operation procedure has been worked out in the present Single European Act. Article 6 raises the co-operation procedures, as opposed to consultation with the Parliament, with regard to certain articles within the Treaty of Rome giving the Parliament slightly more say in matters dealing with the formation of the internal market.
The European Parliament, whether or not we like it and whether or not we despise it, as one or two Members of the Committee appear to do even though they were members of it, is nevertheless a place where people do a great deal of work with a great deal of determination, interest and dedication regardless of whether they are pro-European. I pay tribute to my Labour colleagues from the United Kingdom in that Parliament, because they all work. Time, trouble and expense are taken to produce amendments to draft proposals from the Commission. That is the duty of that Parliament, because it has a scrutinising role under the Treaty of Rome, which was adopted in this place in 1972. It is disgraceful when such amendments are totally ignored by the Council of Ministers, because the Council has already taken up a position through working groups, COREPER and so on, even before the European Parliament's amendments reach the Council.
284 That is something that we all know happens. Mr. Rifkind, when he gave evidence to the Select Committee on European Communities admitted as much. I welcome the co-operation procedure, because before the Council takes up a final position it has to vote. It can reject the amendments made by the European Parliament. Those are matters which the noble Lord, Lord Bruce, kindly brought to the Committee's attention.
The co-operation procedure leaves a great deal of power to the Council. It has the ultimate power of decision. It can block amendments from the Parliament; it can reject them; it can decide to take no further action on them. The whole proposal will possibly then fall. That procedure has two advantages. First, the Parliament knows that whatever else happens the Council will be aware of its views before it takes a final decision; and so the European Parliament's view comes into the public domain. Secondly, where proposals have been made by the Commission and the consultation and co-operation procedure has taken place between the European Parliament and the Council, the draft directives cannot lie on the table for ever. That is an important point which people tend to forget.
Over and over again, the interests of individuals, companies, associations and professions are affected by the lack of decision on draft proposals from the Commission, where the European Parliament has given its decision but the Council, for one reason or another, possibly justified, has not taken any decision. Members of the Committee may be aware—I think the matter was raised on Second Reading—that the directive on architects was adopted after 16 or 17 years.
I believe that the noble Lord, Lord Bruce, wishes to intervene. He seems to be about to take off. He spoke about the European Parliament not being in any way like the House of Commons. I admit that. Perhaps he will recall that in 1978 I was sitting where he now is and he was sitting on this side. We passed the European Assemblies Act 1978 which was about electing European Parliament members. We had an argument as to the method of election, and we agreed on the method which is used for the House of Commons, although the constituencies are different. The constituencies are decided by the Boundary Commission and people have the right to appeal to it. In the European Parliament we represent individuals in this country who elect us to that Parliament. They expect their rights and views to be represented there and it is our duty to defend them.
Lord Bruce of Donington
I am most grateful to the noble Baroness for giving way. While she is on the point, does she recall that in connection with the procedure of direct elections I wrote a 4,000-word memorandum which was submitted to the Select Committee? Unfortunately it rejected my advice. Consequently, only in the United Kingdom, precisely as I predicted, are there members elected directly from constituencies. The rest of Europe, which had been busily impressing upon us the necessity to have direct elections, promptly continued to do exactly what it did before and send at least half of its members off a party list. That is not within the United Kingdom's conception of direct elections. 285 Will the noble Baroness also reassure her noble friend Lord Beloff, who seemed to think that the moving of amendments was a mischievous procedure calculated to mislead the public, that her activities in the European Parliament involved the moving of a series of amendments which she has so justly praised?
§ Baroness Elles
I may take the opportunity after the debate is over. I am happy to have found at least one matter upon which I am in total agreement with the noble Lord, and that is as to the method of election of British members to the European Parliament. We benefit from our geographical representation, but I think that goes beyond the limits of this debate.
I should like to say a few words about the Parliament, as the noble Lord, Lord Bruce has raised the matter. Many parts of the world claim to have Parliaments. I understand that the IPU is now visiting the Parliament of Cuba. I suggest that the Parliament in Strasbourg is more democratic than the Parliament in Cuba or the Parliament of the Soviet Union. We had a visit from a member of the Soviet Embassy who said to me, "Lady Elles, we are much more democratic than you because 99 per cent. of the voters support the members in our Parliament".
We may perhaps agree to disagree on what is a parliament, but every democratic body has the right to call itself what it wishes. The other place chooses to call itself the House of Commons, just as this august Chamber chooses to call itself the House of Lords. The body in Brussels meeting in Strasbourg has the right to call itself a Parliament. It is no less democratic than many other Parliaments.
On the contrary, when the United Kingdom entered the Community it was to this Parliament that the European Parliament looked for guidance; it was to this country that the European Community looked for guidance to further the democratic process in the Community. The European Parliament has been called a parliament since 1962. We should surely therefore accept that and include it in English law.
I noticed that the noble Lord, Lord Bruce, sometimes referred in a Freudian slip to "the European Parliament". We are all called MEPs and I think the "P" has always been recognised as meaning "Parliament".
§ Lord Nugent of Guildford
I wish to make a brief point in answer to what the noble Lords, Lord Molloy and Lord Bruce, said about the possible amendment of this Bill. The amendment proposes that two articles be taken out of the treaty. The noble Lord, Lord Bruce, knows as well as I do what that would mean. If Parliament decided to do that or to take out any other articles we should have to return to the other 11 signatories of the European Treaty and renegotiate the whole thing.
§ 6.30 p.m.
Lord Bruce of Donington
I am most grateful to the noble Lord for giving way. If he will read McNair's Law of Treaties, which is in the Library, he will find numerous occasions on which treaties, when they come up for ratification, are modified. States enter 286 reservations on individual treaties in the process of ratification. All that happens is that the treaty goes back and is renegotiated. This is not unusual. In fact, if the noble Lord looks up Halsbury's Laws of England—I do not have a copy with me, but I am sure that the noble and learned Lord, Lord Edmund-Davies, will be able to inform the noble Lord of the appropriate section—he will find that treaties are not automatically ratified.
One does not have to agree to everything in them in the process of ratification. There was an argument, as the noble Lord knows, in the Dutch Parliament. If an amendment is made, there is nothing to stop the treaty going back to the original parties to see whether it can be renegotiated. There is nothing particularly wrong about that. Nor is there anything particularly urgent about the matter. It often takes two years to resolve reservations in respect of treaties. The noble Lord will find in McNair on treaties in the Library a number of examples of that happening in the past.
§ Lord Nugent of Guildford
I thank the noble Lord, Lord Bruce, for making that explanatory point. It does not comfort me in the least. I do not believe that it will comfort anyone else who wants to see progress in the development of the European Community. The noble Lord said that renegotiation might take two years. It might very well. It might take even longer. Two years have already been required, I believe, to negotiate what is before us. It has been extremely difficult to get agreement to refine measures that would make it possible to achieve the central market and so avoid the continuous obstruction of recent years. This is what the issue is about.
If, at this stage, we proceeded in this Parliament to take out articles, so invalidating the treaty as a whole and obliging renegotiation of it, it would be a major setback to the whole concept of setting up the central market in Europe. The noble Lord perhaps wishes that. The noble Lord, Lord Molloy, said that he did not want that. I am sorry that he is not in his place, but I am glad that he is able to hear what I am saying, for that is the effect of what he argues. There is very limited scope in this Bill and in this treaty for amendment unless we are prepared to upset the whole of the treaty. I would not be prepared to do that. Nor would the majority of the Chamber, I suspect.
There are marginal amendments that we might put at some stage to my noble friend. These relate to safeguards regarding the relationship between the Council and the advisory, management and regulatory committees. There seems to me to be some room for discussion and scope possibly for increased safeguards that we might usefully discuss. But the price of taking articles out of the Bill seems so enormous that I cannot believe that many noble Lords would be prepared to follow that course.
§ Lord Broxbourne
For the avoidance of doubt. on this occasion I rise not to put a question but to make a few observations to the Committee. I hope, however, 287 to be mercifully brief. As the Committee knows, we are here concerned with Articles 6 and 7 of the Single European Act, which together revise and to some extent revolutionise the procedures of the Community. I have no qualms in regard to Article 6. The introduction of the qualified majority and the co-operation of the European Parliament are, I think, good ideas. It would be a mistake, clearly, to take Article 6 out of the Act.
Article 7 gives me rather more difficulty. It rewrites Article 149 of the Treaty of Rome and introduces what is called a co-operation procedure. That is an agreeably soothing phrase, on the face of it. However, one has to look more closely at what is involved. The effect of the so-called co-operation procedure under Article 7 is well and clearly set out in the first report to the House of Commons Select Committee. I ventured to give a short summary and some analysis of it in our Second Reading debate on 31st July. It is in fact a very complex procedure involving shuttling between the various institutions of the Community.
However, it is the essence of it that raises some constitutional doubts. At the end of the day, when all these procedures have been exhausted, the Council of Ministers may adopt a proposal of the Commission and requires only a qualified majority to do so. If, on the other hand, the Council of Ministers seeks to amend the Commission's proposal, it requires not just a qualified majority; it requires unanimity. Unanimity will be increasingly hard to achieve in a Community of 12.
This, the Committee may think, has some constitutional implications in that it involves a substantial redistribution of powers and functions in favour of the executive—that is to say, the Commission—as against the Council, which, for these purposes, represents the legislature. This redistribution reduces not only the power of the Council as such, but, in doing so, the power of individual Ministers comprising the Council and consequently reduces the ability of the national parliaments to which those Ministers are answerable to protect their countries' special interests and advance their point of view. This is a considerable change, with constitutional implications. For that reason, whether or not the amendment is appropriate as it stands, it is a subject that should command the attention of the Committee.
There are of course many good features in this Bill. No one would wish to disturb progress towards the internal market and the provision for political cooperation, although it might have been better had they been incorporated in a separate treaty in so far as they do not involve amendment of the Treaty of Rome. It was a little unkind of the noble Lord, Lord Gladwyn—I am sorry that he is not now giving us the benefit of his attendance—to describe the proposal before us as a wrecking amendment. The amendment is inspired, I believe, by good motives (at least, I hope it is) and not as a means of seeking repudiation of our membership of the European Economic Community. I would neither advocate nor support such a repudiation.
Although in 1972 I was not in favour of adherence to the Treaty of Rome for constitutional reasons, as I 288 then sought to expound, and my wish was for an intimate but less institutionalised association with our European friends and partners—a wish that was not to be—I recognised and made clear in debates in those days that if adherence was formally given to the Treaty of Rome, then, in law and in good faith, we were committed. The Rubicon was crossed and there could be no going back on it. Our path then was to make the functioning of the Community as good as we possibly could.
I am certainly not unsympathetic to the institutions of the Community. As mentioned earlier, I was at one time a member of the European Parliament and—improbable as perhaps it may seem to noble Lords—I was for four years President de la Commission juridique of that Parliament. I was the chairman of the legal committee. It was our task in that multinational body to scrutinise the directives and the regulations emerging from the Commission and to see that they were within the letter and spirit of the treaty of the Community. Our task now in this Chamber is to scrutinise the instruments that derive from such as we have here today in the Single European Act with the same conscientious zeal that we of the commission juridique sought to apply in those days and no doubt still do.
We have heard much of the question of sovereignty. With great respect, this does not apply in that sense today. We no longer have sovereignty in the Dicey sense of the word. When I say "Dicey", I mean with a capital D, the great professor: I intend no pejorative epithet. We parted with that in 1972 for better or worse. Article 189 of the Treaty of Rome gives direct effect in the member states to the regulations and directions of the Community. Therefore national sovereignty in the absolute sense of the word is an institution which is no longer with us.
Looking at the amendments as they stand I have some doubts as to the wisdom of Article 7 for the reasons I have given: because of the redistribution of power in favour of the executive. We have many eminent constitutionalists on the Cross-Benches: the noble and learned Lord, Lord Edmund-Davies, the noble and learned Lord, Lord Denning, and the noble and learned Lord, Lord Ackner. They may share the view that the redistribution of functions should not be so much in favour of the executive as it would appear to be by Article 7 of the Single European Act. Although no doubt they will say they cannot accept an amendment which would delete Article 7, I would ask Ministers this question. Can they see whether anything can be done by goodwill and agreement among our Community partners to make the workings of this co-operation procedure more democratic and constitutional and less weighted in favour of the Commission than would now appear to be the case?
§ Lord Harris of Greenwich
Perhaps I may speak briefly on this question. I do not intend to follow the noble Lord, Lord Broxbourne, on the important question of whether this is or is not a wrecking amendment. We have had that debate on previous occasions. All I would do is follow the logic of the noble Lord, Lord Nugent, when he invited the noble Lord, Lord Bruce of Donington, to answer the question as to what he believed would be the effect if 289 this amendment were to be carried. As I understand it there is common ground on this matter: we would have to go back and renegotiate the whole treaty all over again. I do not know what a wrecking amendment is if it is not capable of being answered in precisely those terms.
I think that the position of the noble Lord, Lord Bruce of Donington, is an entirely honourable one. It is an issue on which noble Lords on these Benches and a number of his colleagues do not agree. The issue is whether or not we should be members of the European Community. The noble Lord, Lord Bruce, and a number of his colleagues, are totally opposed to British membership of the European Community. I have heard nothing from them either during this debate or during the last few years to suggest that there has been a dramatic change in their position.
That being so, it is entirely logical for the noble Lord to move these amendments and the other amendments that stand in his name on the Marshalled List. However, for the same reason, I think he will understand that those of us who are firm, committed supporters of the European Community and British membership of it are determined to vote against those amendments because we believe that the effect of carrying amendments such as this and forcing a total renegotiation of this treaty would be deeply damaging both to the interests of this country and to the whole of the European Community.
For those reasons, briefly stated as they are, I very much hope that the Committee will reject these amendments.
§ 6.45 p.m.
§ Lord Silkin of Dulwich
The speeches of noble Lords have raised a very important point. I had not intended to speak in these debates at all. But the point is so important that I think it desirable to do so.
We have to ask ourselves this question. Are we performing any useful function in putting down amendments and speaking to them, whether one agrees with those amendments or not? If we are told that to do so is simply wrecking, that if an amendment is carried then that destroys the Single European Act (or whatever other treaty may be involved) and therefore one ought not to put down or discuss amendments, then one is saying that one should not examine the whole basis upon which the legislation is being put before us. That, in my view, cannot be right. If it were right it would remove from Parliament an essential function: the function not merely of scrutinising legislation but also of scrutinising treaties made by Her Majesty's Government in the name of Parliament.
We therefore have this difficulty. We do not want to be accused of putting forward wrecking provisions. At the same time, if there are matters legitimately to be discussed, we want to be able to discuss them. I do not know when and where we can do so other than in this Committee, before Parliament, in the way that we are doing as a result of amendments being moved. I say that entirely without prejudice to my own view about the amendments of my noble friend, because I think 290 he is absolutely right to move them whether I agree with them or not.
At the end of the day surely we have this situation. We have to weigh up the pros and cons of the various provisions in the Single European Act to which our attention is drawn. We may like some; we may like others less. We then have to do a balancing act, and ask ourselves, even with those parts of the Single European Act which we consider to he less advantageous, which we like less than others, whether we are prepared none the less to accept the Act as a whole because we think on balance that it helps rather than hinders; or, are some of those provisions that we like less so important and fundamental to us that we are bound to say to the Government, "We want you to go back and re-negotiate them"? That seems to me to be the dilemma. I do not see how that dilemma can be resolved unless we have the opportunity of discussing each one of them individually and coming to a conclusion about them.
Therefore, when the noble Lord, Lord Nugent, who is not at the moment in his place, suggests as I understood him to suggest, that really we ought to be accepting the Single European Act as a whole, or rejecting it as a whole, I think he is ignoring the essential point: that for us to do that we would have to look at each individual part of that whole and decide on balance what we think about the whole in the light of the sum of the parts.
I hope that we shall be able to discuss these amendments without taking the view that to do so is either committing ourselves to a wholesale anti-European view or a wholesale pro-European view. As it happens, the noble Lord, Lord Broxbourne. is well aware that my attitude towards the Community has been as well known as his has. In the past our views have been on opposite sides of the fence. I am delighted that our paths have now converged to the point at which we both recognise that the Community exists and that the best course we can follow now is to make the best of the situation.
I believe that, in looking at these amendments to see whether, on balance, they do irreparable harm to the interests of this country or are so disadvantageous that we ought to reject part of the Single European Act, we are really saying to the Government that we accept the balance that they have reached, or we do not accept the balance that they have reached, and they must go back and renegotiate on our behalf.
§ Lord Mottistone
I just want to take up the point that the noble and learned Lord, Lord Silk in, has made. Of course, when one is discussing any Bill one must have the right to put down amendments which one thinks are right. There is one factor that needs to be considered against the background of all this. Because it relates to a treaty and therefore puts a much greater delay in the enactment of the vital factors by two years or so, instead of just a week or so, one must remember that the real reason behind all this is to improve the opportuntities for trade. It has been quite intolerable that directives on quite simple matters have taken six or seven years to get through. Trade has suffered deeply both inside the Community and worldwide. On top of that, there are quite a lot of harmonisation directives which could have improved 291 trading positions but which have had to be dropped altogether. So when one considers whether to risk referring this back, in effect, to the diplomats for a two-year delay in renegotiating a treaty which has already been negotiated, one must remember that in the process one is destroying trade which has already suffered for far too long.
§ Baroness Hooper
I was somewhat surprised at the breadth and scope of the remarks of the noble Lord, Lord Bruce of Donington, in introducing this amendment. We had in fact sought to group certain amendments relating to the European Parliament in advance through the usual channels, but unfortunately did not receive any co-operation. Therefore, I understand we were addressing ourselves only to Amendment No. 2 whereas we now seem to be on to majority voting in the Council which arises under Amendment No. 5, and the change of name of the Parliament which again arises under Amendments Nos. 44 to 51. Of course, I am happy to speak at this stage in part to those amendments also.
In view of the wide ranging nature of the debate, and since the main object of Articles 6 and 7 is to lay down co-operation procedures—indeed, in view of the fact there seems to be some misunderstanding on this point—it may be helpful and useful to explain again what is involved in the new co-operation procedures with the European Parliament.
The present position is that the European Parliament already has the right to be consulted under some 17 articles of the EC Treaty. The Single European Act lays down a new procedure for 10 articles, some of which are new—that is, introduced by the Single European Act itself.
Perhaps I may interject something from my experience as a directly-elected member of the European Parliament. I hasten to say I do not regard these elections as a farce, which was the suggestion of one Member of the Committee opposite. This experience may be shared by other noble Lords who have served in that Parliament. In fulfilling its institutional role, the European Parliament is expected to consider, and if necessary amend, proposals made by the European Commission. This has to be done before the Council of Ministers can make a final executive decision. Time and again as members of the European Parliament we laboured hard and long to alter the proposals to fit the expectations and aspirations of our constituents and the countries we represented, only to find that the Council was working on a document which bore so little resemblance to the document on which the Parliament's opinion was based that we had in effect wasted our time.
The co-operation procedure is designed to enable the Parliament to make its views known and to give the Council the opportunity to take account of them, before the respective positions of the institutions are set in concrete. I have said that there are 10 articles to which the new procedure will apply. They mainly cover measures affecting the internal market. When these measures are proposed by the Commission, the proposal will go to the Council and the Council will discuss it and adopt a common position. This common position will be sent to the European 292 Parliament which has to muster an absolute majority of all its members to pass amendments of which both the commission and the council will have to take account.
The next step in the procedure is for the Commission to consider changing its proposal to accommodate the parliament's amendments. It is not obliged to do this but if it did so the Council could still, as it can now, change the Commission's revised proposal by unanimity. Where the Council accepts the revised proposal then, as now, it will vote according to the relevant treaty article.
The European Parliament may reject altogether the common position of the Council, but it may only do this by an absolute majority of all its members. The Council can still go ahead and adopt its common position by unanimity. Unanimity is at present required for many of the Council Acts covered by the new procedure—for example those under Article 100. I hope this clarifies the position in this respect.
Some Members of the Committee have expressed the fear that, for example, there could be an alliance between the European Parliament and the Commission to change the Council's common position. The fear has also been expressed that the European Parliament will put pressure on the Council by rejecting the Council's common position. Behind both these fears is the anxiety that it will then be difficult for the Council to achieve the unanimity required to push a proposal through, particularly if there is an alliance between one member state and the European Parliament. But, were this to happen, we should be no worse off than we are now with the current requirement for unanimity which some noble Lords are anxious to retain.
In practice, I do not think that these fears are well-founded in any event; First, because the requirement on the Parliament is to muster an absolute majority of all its members to reject or amend a Council common position. This means finding 260 votes out of 518 which I know from my own experience to be a fairly rare occurrence. Very few proposals before the European Parliament in practice command an absolute majority in favour.
Secondly, we are talking about Commission proposals on which the Parliament will already have given its opinion. These proposals may have been amended, as often happens now, by the Commission to reflect the Parliament's views before the Council considers them. Unless the Council changes the Commission proposal out of all recognition, the Parliament will be re-examining a proposal which may already reflect its views. It is much more likely that the Parliament will propose amendments than that it will reject common positions altogether. As I have explained, where it does propose amendments, the position remains as it is now.
It is vital to remember that the Commission is not obliged to accept the Parliament's amendments. Indeed, if the Commission and the Council have laboured hard to find a measure which can command majority support among the member states, the Commission will not lightly accept amendments which would destroy the majority in the Council, for this would mean that the Commission proposal 293 concerned would lapse through lack of support. Such amendments cannot go through in the absence of a Council vote. They go through only if there is a qualified majority in the Council in favour of them. If there is no qualified majority, then the proposal will lapse after three months. Therefore, there are built-in safeguards and we are faced with an attempt to improve co-operation and to give the directly elected Parliament, in which this country is well represented, its rightful voice among the European Community institutions.
Perhaps it may help the Committee if at this point I also try to sort out some of the misunderstandings that have arisen over the question of majority voting and the use of the word "veto". These were evident in the earlier discussion as well as in the discussions on this amendment.
Under the existing European Community treaty, some 32 articles make provision for decisions by unanimity and some 49 articles for decisions by qualified or simple majority. Under the Single European Act the number of articles under which decisions can be taken by qualified majority will rise by 10, principally in the internal market area where we wish to see progress, which is a sentiment which has been reiterated by a number of the Members of the Committee in the course of the discussion.
The requirement for unanimity in the treaty obviously constitutes a veto in the sense that any one member state can block progress even though all the others wish to go ahead, unless all agree that, under the terms of the treaty, a measure cannot be adopted. As a result of the Single European Act that block on progress will be removed from outside. However, the Luxembourg Compromise—frequently referred to as a veto—will remain available. The Luxembourg Compromise applies only to those articles where qualified majority voting is the rule. Where a very important national interest is at stake and where a member state might otherwise be voted down, it enables that member state to ask that discussion should be continued until agreement is reached.
Some noble Lords may ask: what is the point of moving from unanimity if the Luxembourg Compromise is still available? The answer is that, where unanimity is the rule, it is all too easy for a single member state to block progress. All it needs to do is to say that it disapproves or disagrees and a member is thereby blocked. Where majority voting is the rule any member state wishing to prevent agreement will have to invoke the Luxembourg Compromise; that is, it will have to make a clear request, based on a sober assessment of national interest, that a vote should be deferred. That alone would be an inhibition on member states from invoking the Luxembourg Compromise unnecessarily and unless a very important national interest really is at stake.
Lord Bruce of Donington
If the noble Baroness will give way, perhaps I may help her. If she is about to deal with the Luxembourg Compromise, perhaps I may point out that I am most anxious that that should not be dealt with in detail now as, of course, under Amendment No. 37 it will arise in its most concrete form. I thought that perhaps the noble Baroness might bear that in mind if she contemplates continuing 294 further on the matter of the veto and the Luxembourg Compromise. We shall have a later opportunity to deal with it.
§ Baroness Hooper
Yes, indeed. As I said at the outset, a number of issues were touched upon which we had not anticipated and therefore I was going to take the opportunity to deal in part with references to those other points. Perhaps I may also refer to the remarks made by my noble friend Lord Broxbourne about the unanimity requirement under the revised Article 149. My noble friend pointed out that, where the Commission makes a proposal, that proposal can only be amended by the Council by unanimity. In this respect Article 149 is entirely unchanged from the existing treaty. Article 149 of the existing treaty states that:Where the Council acts on a proposal from the Commission unanimity shall be required for an act constituting an amendment to that proposal".Therefore, the new arrangements exactly follow the old.
Turning very briefly to the change of title as again this will arise under subsequent amendments, I find it extraordinary that so long after our joining the European Community we are still arguing whether the institution should be called an assembly or a parliament. This is, after all, a semantic argument in which the country as a whole has very little interest. The institution has been universally known as the European Parliament since 1962. It is referred to as such by all political parties in their manifestos both for the European elections and for general elections. Indeed, as my noble friend Lady Elles also noted, the noble Lord, Lord Bruce of Donington, himself claimed that he had the honour to represent his country in the European Parliament from 1975 to 1979.
In conclusion, in relation to the various points that have been raised, the noble Lord, Lord Bruce, suggested that it was not unusual to renegotiate treaties between signature and ratification. It is certainly possible, but I would not accept that it is usual, particularly in the case of multilateral treaties negotiated at Head of State level, such as the Single European Act which is before us. The noble Lord seemed to suggest that the problem could be solved by the making of reservations. A reservation appended to ratification which stated that the United Kingdom would not regard itself as bound by Articles 6 and 7 would be contrary to the object and purpose of the treaty and would be certain to give rise to objection by the other signatories. A reservation in such terms would in fact prevent the entry into force of the Single European Act between the other member states and the United Kingdom.
We have looked hard at these amendments and there has been a very full discussion. I beg the Committee to support the provisions of the Single European Act and to reject the amendment.
On Question, amendment negatived.
§ Baroness Young
In view of the hour, I wonder whether this might be a convenient moment for us to break for dinner. Therefore, I beg to move that the 295 House do now resume. I think that we can return to our debates at 8.10 p.m.
Moved accordingly, and, on Question, Motion agreed to.