On a point of order, Sir Robert. Before we proceed with the Bill, may I raise two matters with you, one of major significance and another of lesser importance?
It is the custom when matters are debated in the House or in Committee for there to be the necessary papers and documents available on the table. I do not mean in the technical sense of their being presented to the Committee, but physically here, available to hon. Members to consult. I hope that you will be willing to make arrangements so that when we proceed with the Bill we shall have available every day throughout the Committee stage all of the treaties, regulations and documents which the Government are seeking to incorporate into the legislation of this country. We should have this because we will have to consult these documents.
Not only available in the Vote Office. I am suggesting that they should be available here. Many of these documents are available in the Vote Office but we need them here in the Committee.
My other point of order is one which we regard as of some substance and which we ask you, Sir Robert, to consider most carefully. I am fully aware of the conventions of this Committee and the arrangements under which these matters are dealt with. Hon. Members in all parts of the Committee have had the opportunity to consult the Table Office about this Bill, and during the past few weeks many of my hon. Friends have done so. They have always been received with courtesy, as is usual with officials of the House in the conduct of their affairs, and certainly we on this side respect the advice and guidance which they give to all hon. Members irrespective of political affiliations or opinions. I understand that the decision about the selecttion of Amendments is not a matter for the Table Office but a matter for yourself. It is your decision which is presented to the Committee, and it is on that basis that I raise this question with you.
I fully understand that it is not open to me on a point of order to question your selection, Sir Robert. Any such step must be done by way of a substantive Motion. I have always understood it to be the case, particularly with Bills of such character, range and significance, that it is open for hon. Members at the beginning of the Committee stage or at other moments to make representations to you about the selection of Amendments so that you may take them into account and maybe make further recommendations later.
What has happened on this occasion, as with other Bills, is that you have posted in the "No" Lobby an indication of Amendments to be selected. I will put to you at the end—[Interruption.]—the point of order I wish to make on this occasion. Hon. Gentlemen opposite must get used to the fact that the House of Commons is concerned with these matters.
We do not propose to be jeered out of our rights.
What I wish to do at the end of my remarks is to submit to you, Sir Robert, a way in which I would hope it would be satisfactory for these matters to be reconsidered. I will ask you at the end of my remarks whether you will consider making a fresh statement later this afternoon about these Amendments and the selection in the light of the representations I now seek to make to you and which perhaps some of my hon. Friends will seek to make.
There is nothing cast-iron about any proposed selection, as I am sure you will agree. It can always be altered at various times according to the desires of hon. Members or changes of opinion which the Chairman may have. When we saw the selection a few hours ago many of us were greatly concerned about it in the interest of the Committee as a whole. We believe that the selection is so restrictive and so severe that it would lead to serious curtailment of matters which have to be debated in Committee.
I will not go through all the Amendments that we think are covered by this condemnation but I can give an example of one or two. We have tabled Amendment No. 24 on page 2743 of the Amendment Paper. It is not an Amendment saying that the question of the fisheries agreement concluded by the Government should be discussed. We have said that it should not be accepted by the Houses of Parliament until there has been an affirmative Resolution of each House accepting it. In other words we have sought to frame our Amendment in that instance, as in others, to suit the requirement of the Bill of trying to lay down what matters Parliament still has available to it to settle and discuss.
We believe that it was necessary to table that Amendment and those Amendments which we have proposed for restructuring Clause 1(3). We have tabled a whole series of Amendments dealing with that purpose, as we thought. We have tabled those and every other Amendment because we believe that Clause 1 is not in any sense a definition Clause. It starts as if it is but if it were to be passed, it would go much further than merely defining the words to be used in the Bill.
We believe that the whole of Clause 1 hangs together, as I presume those who drafted it wished it to, and that therefore this Committee has the right to look at it, examine it and unwrap the package to see whether we want it in exactly that shape and form and to include all those contents. We claim that that is a perfectly proper course to have available to us.
Then there is also the suggestion—I do not say it came to us from anybody from the Table Office—which is implicit, we believe, in the selection that has been made. The suggestion is that because the Government have signed a treaty we must accept the treaty as it stands. I am not discussing the merits of whether we accept it at the moment; I am discussing the question of what the rights of the House of Commons are in this respect. It may be thought, therefore, by some that the fact that the Government have signed a treaty in some way inhibits the House in the way in which it can discuss the matter or make the Amendments.
Sir Robert, I would believe that that is a very wrong assumption for anyone to make, because the House of Commons and the British Parliament have always insisted on and been extremely jealous of the fact that the rights of this Parliament about treaties are not the same as those in many other countries. Other countries have a situation whereby when a treaty is signed their own domestic Parliaments can do nothing about it.
But in this House, we have always insisted on what I understand to be the position. I have had the advice of lawyers on the subject. No doubt they will be able to express it more clearly than I do, but what they have expressed to me, and what I believe is laid down in all the books on these matters, is that the authority of this House is not in any way infringed by the fact that the Executive happens to have signed a treaty, that it is always necessary for the Executive to come here and see whether what it has done will be passed through this House.
In other words, until now the House retains its full authority over the whole range of treaties which the Government have signed, and which are included in the proposition which is being presented to us.
Will the hon. Member for Ebbw Vale (Mr. Michael Foot) forgive me for one moment? Is not the case even a little more than that? It is, of course, perfectly true that in this country matters cannot be incorporated into our domestic law except by express act of Parliament. But even in those other countries where the provisions of treaties are self-executing, that is a situation, is it not, which obtains not on the signing of the treaties but only on ratification?
Lest some error in procedure should creep in, I think we must be on our guard, because there is no Motion before the Committee. Whereas I am quite prepared in every way to assist the Committee where I can and to listen to points of order, I think it would be unwise to have a point of order interrupted by someone else, lest other people should want to establish a precedent for that. I am sure the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) will understand. If he wishes to raise a point of order later, perhaps he would do so.
I thank you, Sir Robert, for the patience with which you have listened to what I have had to say. In an aside I thank the right hon. and learned Member for Hertfordshire, East (Sir D. Walker-Smith) for his assistance.
However, I am not seeking to elaborate the whole of the case that might be available to those who wish to press this now. I am seeking to indicate the headings under which some of us believe that a too restricted selection has been made. It is partly because of what might be considered a misapprehension on the treaty-making powers of the Executive that we believe that this too restricted view of the possibility of Amendments may have been taken. If so, that is one of the considerations which we hope the Chairman will take into account.
There is also the further fact. Sir Robert, that we regard this Bill as being unique. Therefore, even if the precedents were against us on the subject, we would still claim that since it is proposed under this Bill that rights which this House has held for generations should be yielded, that is a ground why a special latitude—if that is not too strong a word—should be granted to those who are critical of the legislation in seeing that their point of view is presented to the House of Commons in the way they wish to put it.
One of our strongest grounds of objection to the form in which the selection has taken place is that, instead of being able to present our arguments in the way we might wish to put them, we would have to present them in a much more restricted and technical fashion—if I could put it that way.
I further believe, Sir Robert, that if this selection of yours were to be adhered to, one of the major consequences would be that it would cast a very extraordinary reflection on the debates which have preceded this one, because we have had some previous debates, of course, on these matters and the Government have given us their view on the question of what is amendable.
We thought, and still think, that this Bill is amendable in a very broad sense. One of the reasons why we think so is that we were told so by the authors of the Bill. We have the speech, for example, delivered by the Solicitor-General, whose name appears on the back of the Bill. As far as I can see, all the Amendments which my hon. Friends and I have put down will be embraced by the Solicitor-General's definition of what was to be allowable. I know he was not speaking solely on that question, but he was taking the case generally.
I think the Committee will see as I proceed that I am quoting most appositely from what the Solicitor-General said on this question. I am not seeking to drag in any matter to which he may have referred which did not deal exactly with the question of Amendments, which is the point of order on which I am speaking now.
In the debate on the Treaty of Accession on January 20th, in col. 793 the Solicitor-General said:
The other principle is equally important. Those prerogative powers, the treaty-making powers, do not enable the Crown to alter the law within the United Kingdom so as to implement the treaty. This internal implementation—this is an important point about which the House can be entirely reassured—is fundamentally distinct from the making or the conclusion of the treaty. If a treaty includes an alteration of our domestic law, in-
cluding the granting of new powers to the Crown or the undertaking of new financial commitments, then Parliamentary approval in the form of appropriate legislation is necessary before the objectives of the treaty can be met.
Then the hon. and learned Gentleman went on:
I note with interest what my hon. and learned Friend the Member for Northwich said.
Hon. Members who were present at the
debate will remember that what the hon. and learned Member for Northwich (Sir J. Foster) recommended was a one-Clause Bill, in effect, in which all Amendments might be excluded. But the advice of the hon. and learned Member for Northwich was, not insultingly but deliberately, rejected by his Front Bench, which did not wish to go about it that way.
The Solicitor-General went on:
It would not be right for me now to anticipate the form that it will take. My hon. and learned Friend is wrong, how ever, when he argues as a matter of principle that the legislation to implement a treaty allows no scope for amendment, because the House will be familiar with much legislation implementing other treaties of more or less importance in the past, all of which has been capable of amendment, dependent upon the way in which the Government of the day chooses to implement the treaty obligations."—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 793–4.]
It seems to me, Sir Robert, that is a very clear statement. However, even clearer, if I could possibly say so, was the statement made by the Financial Secretary to the Treasury in the debate we had on 22nd February. Once again, I insist that this is most directly apposite to the question of the choice of Amendments; he was talking about the Money Resolution:
Thus, I am advised that if the House accepts the Resolutions "—
they were the Money Resolution and the Ways and Means Resolution which we were debating—
it will be in order to discuss in Committee or on Report any Amendment to the financial Clauses of the Bill which does not actually increase the charges on the people or on public funds at present appearing in these Clauses.
It is important that I should make this point at the outset. I recognise that some right hon. and hon. Gentlemen on both sides of the House object to the financial provisions of the Bill. Nothing in the Resolutions will prevent them from making those objections or moving Amendments to remove, curtail or impose conditions or restrictions upon these provisions at the appropriate stages of the Bill's
progress through Parliament."—[OFFICIAL REPORT, 22nd February, 1972; Vol. 831, c. 1138.]
We have now reached the appropriate stage.
If it is fully open to the Committee, in discussing the Bill, on the Money Resolution to make any Amendments that it wishes so long as we do not increase the amount of money which we are going to spend—no one on this side proposes that—according to the statement by the Financial Secretary, we are empowered, or we could have the right, to put down any Amendments at all, reducing the amount which is spent. There is no objection on some other grounds about order.
That is the approach of the Government and the Financial Secretary to the Bill. If it is true of the Money Resolution, then, a fortiori, if that is the right word—I have spent a great deal of time with lawyers recently—and if the Government are insisting that they will be meticulous that the treaty should not be re-opened, all the more is it true of the general treaties and all the other matters which we will be discussing under this Clause.
So, if this Bill were proved to be as unamendable as your choice of Amendments suggests, Sir Robert, the Government will have been guilty of false pretences in the way in which they have presented the Bill to the House so far. They have told us up to this stage, "Everything will be amendable. You need have no fears on that count". Now, when we go into Committee, we discover that the Amendments accepted by the Table are extremely severely limited.
I understand that you, Sir Robert, do not act as the agent of the Government in any sense whatever. Indeed, it might be said that your advice to the House implied in this choice of Amendments is contradicted by the Government's advice before. But if this severe limitation on our Amendments is accepted, the Government themselves will be in a very difficult position. After all, this Bill did not go through the House with a great big roaring majority. It only had a majority of eight on Second Reading. This has to be taken into account by Chairmen of Ways and Means and others.
I believe that anyone who looks at the background to the Bill, the nature of the Bill, the discussions and the Vote on Second Reading, the precedents, the unique character of what is proposed to be abandoned by the Bill, will see that on all those grounds this Committee will do its duty only if we have the utmost freedom in the exercise of our rights to put down Amendments for discussion.
I therefore ask you, Sir Robert—I once again thank you for the patience with which you have listened to me—to consider seriously the submissions that I have made. I am not necessarily asking that you should give your verdict now. We have sometimes used this procedure in the past to make representations to the Chair and to invite the Chair to make a statement later.
If, at 5 p.m. or 5.30, you wished to make a further statement, having taken into account my representations or those which others may wish to make on similar points, and you say that you would prefer to consider the matter afresh in that light, I believe that the Committee would understand it. But it is only fair to stress to you that we on this side believe that the submissions that I am making about what we regard as the highly restricted and severe form of selection are of major consequence for the future of the House of commons.
Order. Before I call any other hon. Member on a point of order, it might be convenient for the Committee if I read a short statement which I think will help hon. Members to see why I have come to the conclusions that I have and why the selection seems to many hon. Members to be so disappointing.
A large number of Amendments have been submitted to Clause 1, and the Committee is entitled to know why so few have been placed on my provisional list. Let me say at the outset that, in regard to the majority of the Amendments on the Paper, the question is not a question of selection but one of order. That is to say, most of the Amendments—indeed, all of the more important Amendments—have been omitted not in virtue of my power of selection but because they are out of order and could not be called in any circumstances.
The reason for this is the nature of the Bill itself—[HON. MEMBERS: "Oh."] The Bill, as the Explanatory Memorandum says, is one which makes the legislative changes which will enable the United Kingdom to comply with the obligations entailed by membership of the European Coal and Steel Community, the European Economic Community and the European Atomic Energy Community, and to exercise the rights of membership.
In a word, the Bill provides the legal nuts and bolts which are necessary if the United Kingdom is to be a member of the Communities. It is not a Bill to approve the Treaty of Accession or any of the other treaties which are basic to membership of the Communities—[Interruption.] If it were such a Bill—[HON. MEMBERS: "Disgraceful."] If hon. Members would be so kind as to wait for a moment. If it were such a Bill, then, of course, every article of these treaties would be open to discussion and the majority of Amendments to Clause 1 would be in order. Since this is not a Bill to approve the basic treaties, Amendments designed to vary the terms of those treaties are not in order, and I have no option to rule otherwise.
Further to that point of order. Your very last sentence, Sir Robert, referred to "the basic treaties". Does that mean that you will not accept Amendments relating to the basic treaties, such as the Treaties of Rome, Brussels and Luxembourg, but will accept Amendments relating to the Treaty of Accession, which you may or may not have included in that last sentence?
Second, have you borne in mind the very long series of precedents, stretching back over the centuries but including quite recent ones, for the statement in Bills of this character of items which the House wished Her Majesty's Government, when ratifying a treaty, to state as reservations? As you know, in international law it is customary to ratify treaties with reservations.
You will notice that 12 Amendments in my name to this Clause are all stated in that technical way—that the treaty shall be ratified only with a particular reservation. For centuries, in dealing with legislation relating to treaties, the House of Commons has given instruc- tions, in effect, to Her Majesty's Government requiring certain reservations to be made.
It has been the practice of Her Majesty's Government, whether with or without such statements, to make reservations when ratifying treaties, even including treaties which Her Majesty's Government have, of course, negotiated. If this Committee cannot do that, there is very little point in considering this legislation further.
This is a matter of vital importance. To take only my own example, my Amendments are all designed to enable the treaties, whether called "basic" or not, to be enforced in the English courts by any individual against any organisation. Under those treaties and under the Bill, it will be possible for the Community itself to enforce its law against an individual in this country, but it will not be possible for an individual to make sure that the Community itself is obeying its own law, because there is no procedure for its enforcement.
One instance in which it does not obey its own law relates to documentation which the Leader of the House has not yet published. He said he would give us all the documents necessary for the consideration of the Bill, but, in fact, he has not given us all the documents necessary. The Treaty of Accession says that by it we are accepting all Acts and decisions of the Council of Ministers. Where are those Acts and decisions? The right hon. Gentleman has published some, I agree, but he has not published all of them, and one of the reasons why he has not published them—and it is a good reason—is that the Community has not published them either, although that is what it is required by the Treaty to do. It has not even published, as I am informed, its own rules of procedure.
This is not a technical point, but a point of great importance, because by the Treaty of Rome the Council of Ministers need not meet in secret. Just like the Security Council of the United Nations, or a large number of international bodies, it could well meet in public. Since it meets with 200 people present, and if one leaks to the Press—
I am doing so, but I was relating myself to the two points of order which have been raised by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot). There were two points. You did not allow any of us, Sir Robert, to get in on the first. This relates partly to the first, but I assure you that all my remarks relate to one or other of the points of order raised by my hon. Friend. It is a matter of some importance that we should be able, for example, to decide upon matters where the Council of Ministers is not even obeying its own legislation.
How many hon. Members who desire passionately to see Britain enter the European Community realise that the way this legislation is worded means that the Community can enforce Community law on individuals, but that it does not mean that an individual can do what that man in Northern Ireland did the other day. It does not mean that an individual can go to any authority in this new federal institution and necessarily say—he can in a few cases, but generally speaking not—" Look, here is the Community law which we have enacted in Britain. How do we enforce it against you when you are breaking it? "If somebody gives way, for example, an official secret, if a member of the Board of Trade gives away a company secret, he can be prosecuted, obviously, under the Official Secrets Act, but if he does so as a Community civil servant, under this Bill he cannot be.
Are we not going to be able to raise that point? I do not want to go into the merits, Sir Robert, in any way. It may be that you have not selected Amendments of this type on Clause 1. I was asked to refer directly to your statement. I was advised that my 12 Amendments to this Clause were in order but might be appropriate at another point in the Bill. If that is the case—
Order. I can assure the hon. Member that I have looked at all the Amendments most carefully, of course, and in the case of his it may be that some of them could be in order in the form of new Clauses, but as they are at present on Clause 1 I have to find them out of order. I hope the Committee will realise that in making this decision I have to look at what I have before me. I have to look at the Bill. I have to take the advice of the learned Clerks and decide what is in the Bill. [HON. MEMBERS: "Oh."] I have to listen to the advice. I amend what I said: When I say "take" I mean "listen". I have to listen to the advice of the learned Clerks and make up my own mind. I can assure the House from the bottom of my heart that I take the fullest responsibility myself in seeing whether Amendments are or are not in order. I believe that with the Bill as it is drafted now the decision I have made is the right one, and any quarrel which the House may have really should not lie at my door.
Further to that point of order, Sir Robert. It will have been evident to the whole Committee that the statement which you were good enough to make to the House is a very grave and far-reaching one. If I may say so, the Committee was greatly helped by realising from that statement that we are indeed on a point of order; that we are not, in fact, in any danger of doing what the Committee is very reluctant always to do, of seeking to criticise the discretion of the Chair in the selection of Amendments. Our difficulty is of a deeper character, which you indicated by describing most of your decisions as having been covered by the question of order.
That has disclosed that the House finds itself in the position, on the Bill, of being unable to debate a whole series of changes in the law of this country which will come about if the Bill is passed; and that, I submit, is a position of very great difficulty indeed, not least, if I may say so, for my right hon. Friends on the Treasury Bench, because it will be within the recollection of the whole Committee that when on 20th January we were considering whether the Government required specific authorisation to sign the treaty this House was assured that whatever resulted from the treaty could be discussed after it had been signed and that the vehicle for its discussion—and this was repeatedly stated—would be the normal proceedings of this House upon the implementing legislation, and that is the Bill which we have before us.
It therefore appears, Sir Robert, from your Ruling that the Government themselves must have been under a misapprehension as to the scope and the con sequences of the form in which they laid the legislation before the House, because it cannot be believed, or suggested, that the Government would deliberately have misled the House on 20th January as to the proposals which it would have before it.
I therefore wish to submit to you, Sir Robert, that your own statement has disclosed a very grave difficulty which confronts the House and which can only be removed if, instead of this legislation as apparently it has to be interpreted, some other legislation which permits what the House has been promised is laid before it.
What the right hon. Gentleman has said means, of course, quite obviously that really this is not for me. The points which hon. Gentlemen have raised are not really for me to adjudicate on here, or even at all. They are questions of policy for the Government. I have to deal with order. I have to deal with the Bill as it is and say whether the Amendments which have been mentioned are in order or not.
I rise again on a point of order, Sir Robert. I do not wish to hinder any of my hon. Friends or anyone else in the House who wishes to make any submission to you on this subject, because I think it is a matter which every hon. Member of the House may wish to consider very carefully, but I must say, Sir Robert, that I think it is regrettable that you did not respond to the suggestion that I made, which was a perfectly proper one and perfectly in order, that you might have listened to our representations and heard our submissions before treating us to a prepared statement—a statement prepared before our submission were made. May I say to you on behalf of the Opposition, officially—and, as I say, I am not seeking to prevent any of my hon. Friends who may wish to make a statement to you—that we are not prepared to accept the selection of the Amendments on the basis that you have suggested. Therefore we shall seek the proper parliamentary method of dealing with this aspect of the question, whatever may be the further aspects of the nature of this Bill which the right hon. Member for Wolverhampton South-West (Mr. Powell) has raised.
At the proper time we shall put down on the Order Paper of the House of Commons a substantive Motion criticising the selection that you have made, Sir Robert. I trust that the leaders of the Government and the Leader of the House will agree that the Motion is of such paramount importance that it should be discussed at the earliest possible date consistent with giving the proper warning and information to other hon. Members of the House of Commons. When we put down our substantive Motion this afternoon, I trust that the Government will make arrangements for the matter to be debated tomorrow afternoon in the House of Commons.
It is clearly impossible for us to proceed with the discussion on the Committee stage of the Bill when the Opposition are questioning the selection of all the Amendments. There are many other hon. Members who may wish to make statements about this; indeed, the Government spokesman may wish to make a statement. I give notice now that in my judgment, and I trust in the judgment of the Committee, the only proper way of dealing with the position in which we have been placed is for the Government to make arrangements tomorrow for the House of Commons to debate the substantive Motion which we shall propose criticising the Chair.
For the rest of today, since we obviously cannot proceed with the Bill, we should report progress and ask leave to sit again. It would be most unfair for these matters to be dealt with now when we are questioning the judgment of the Chair and when some of our earlier Amendments would be excluded from discussion.
I hope that I have clearly stated our attitude to the matter. I hope, too, that the Government are fully aware of our position and that they will take steps to put this discussion in order. In our discussion tomorrow we can discuss the matters which you have submitted to us, Sir Robert, and their relation to the nature of the Bill. This is the only orderly way in which we can proceed. I hope that those who wish to abide by the rules of order of the House of Commons will follow precedent by giving preeminence to the substantive Motion which we shall put down on behalf of the official opposition.
Perhaps I should emphasise to the Committee what I have already said. I have really no option in deeming an Amendment in order or out of order—[HON. MEMBERS: "Why."]—for this reason. It is either in order or not in order. There is a great difference between that and the selection of Amendments. I am not ruling upon the selection of Amendments. As everyone knows, the selection is a provisional selection and is open to change at any time.
When the Chair rules that something is out of order, the Chair can give reasons why it is out of order if it wishes to do so, or hon. Member may rise, as the hon. Gentleman has done, and seek to change the Chair's opinion. The Chair, after reflection, may find it has make a mistake. I do not think I have. The Amendments as I have found them are in the main not in order, except for the ones which I have selected. Whether or not they should be in order is not a question for me. That depends on the type of Bill with which I have to deal, and I cannot in any way be held responsible for that.
I entirely appreciate the distinction which you have drawn between selection and the ruling as to order, Sir Robert. I remember that Sir Charles MacAndrew dealt with this point when he occupied your Chair. He said that in making the selection it was not for him to decide whether an Amendment was a good one or a bad one, but it was for him to decide whether the matter was more adequately dealt with by another Amendment which expressed the matter better. That is the field of selection.
Then there is the question whether an Amendment, whether selected or not, would be in order under the Bill. As I understand. Sir Robert, what you are saying is that the Amendments are not in order on the Bill, and you have rejected the great majority of the Amendments.
The question whether Amendments are in order on the Bill depends on the interpretation of the Bill. You have had an interpretation of the Bill given to you by your advisers. That interpretation is wholly different from the one submitted to the House by the Government. The Government understand that the Bill which they have presented—and if they do not they have grossly defrauded the House—will enable us to give legal effect to the treaties that they made, and they assured us that we should have the opportunity to discuss those treaties when we were asked to give them legal effect. This is the Bill to give them legal effect. That is the interpretation which the Government put on the Bill, in more detail even than the quotations put by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot). So we have the Government's interpretation of their Bill and the interpretation of your advisers, and those two interpretations are wholly inconsistent.
Clause 2(1) says:
All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law…
If we are not giving those treaties legal effect, how can they be recognised in law? They either have a legal effect or they have not. They have a legal effect if we give it to them. They do not have a legal effect if we do not give it to them. The fact that the Executive makes a treaty does not give it legal effect in our courts. The only way in which it can have legal effect in our courts is if we give it that legal effect.
Therefore, Sir Robert, in my submission, the advice given by the Government as to the meaning of their Bill is right; it is a Bill to give legal effect to these treaties. That is why it was introduced, and the Government are perfectly right in what they said. Although your decision is a decision on advice, it is a decision which you must take. It is your decision whether you accept the Government's advice as to the meaning of the Bill or your adviser's advice. Sitting as I do on the Opposition benches it is a little paradoxical that I should be pleading with you to take the advice of the Government as to the meaning of their own Bill, but that is what I am asking you to do.
From the point of view of the Chair, it becomes a little embarrassing if we are to follow the procedure proposed by my hon. Friend in which a Motion rejecting the advice of the Chair is proposed by the Opposition and—if they have a shred of honour or consistency left—supported by the Government. It would be in the interests of everybody if you were to postpone this matter and reconsider the advice that you have been given in the light of the arguments put forward before adopting the procedure of a special Motion which the House will otherwise have to debate tomorrow.
On a point of order, Sir Robert. The Ruling you have given to the Committee this afternoon is one of the most epoch-making ever given in the history of Parliament. I, too, well understand the distinction between the exercise of a Chairman's discretion and the consideration of what is or is not admissible on the basis of order. Where a Chairman exercises his discretion he does the best he can in a neutral position subject to all the conditions of human fallibility. But where a Chairman, exercising the same jurisdiction, relies on a matter of order, he sets certain limits to the discussions of the House of Commons; he points to a ne plus ultra; he circumscribes to a substantial degree the rights of this institution. That, of course, is what you, Sir Robert, have done this afternoon.
The institutions of the House of Commons have for many centuries been cherished by the people of these islands in the sure and certain belief that this free House has complete jurisdiction in the scrutiny and the treatment of all legislation that comes before it. Furthermore in perusing Erksine May one comes to the conclusion that there is no clear statement whatsoever concerning any inhibitions which may lie upon the House of Commons in the treatment of treaties.
Further, I should be grateful if you could tell the House of Commons whether, in the advice which you received from your advisers, your attention was in fact drawn to what is probably the most authoritative decision on the power of Parliament in relation to the ratification of treaties. I refer to the case of the Attorney-General of Canada v. the Attorney-General of Ontario, decided in 1937 and reported in Appeal Cases 1937, at page 326. I shall quote very briefly from the judgment of one of the greatest
of our English judges, Lord Aitkin. He said at page 347:
If the national executive, the Government of the day, decide to incur the obligations of a treaty which involve alteration of law they have to run the risk of obtaining the assent of Parliament to the necessary statute or statutes. To make themselves as secure as possible, they will often in such cases, before final ratification, seek to obtain from Parliament an expression of its approval. But it has never been suggested and it is not the law that such an expression of approval operates as law or that in law it precludes the assenting Parliament or any subsequent Parliament from refusing to give its sanction to any legislative proposals that may subsequently be brought before it.
Sir Robert, your Ruling—and I say this with the greatest respect—is a challenge to the fundamental rights of this House. I ask you urgently to reconsider the position in view of the fact that there is no authoritative statement by the learned editor of Erskine May and in view of what Lord Aitken has clearly shown, that it is possible by any subsequent legislative enactment to amend that treaty. Why, therefore, in reason should it not be possible to amend that treaty in the very legislation that is dealing with it?
Further to that point of order, perhaps I should just say something about the very wise words which the hon. Gentleman has just said.
I do not think that it really alters the position at all for the Chairman of Ways and Means. The long-established custom of this House, not only here but in Standing Committees too, is that the Chairman shall decide what is or is not in order.
It so happens that we are now discussing one of the most fundamental and important Bills that has ever been before the House of Commons. Whether that is or is not so is not for me to adjudicate. It is for me to carry out the rules, which are time-honoured and have been observed by a long succession of my predecessors in this Chair for many hundreds of years. I am trying to do that with all the precision and ability that I can command. I ask the Committee to believe—and I am sure that I shall not find them wanting in this—that I have acted in perfectly good faith in doing what I think to be the right thing in view of the precedents and practice of the Committee in the past.
The hon. Member for Ebbw Vale (Mr. Michael Foot) commented adversely on the fact that you had read a prepared statement, Sir Robert. That statement gave us your reasons for disregarding certain Amendments and selecting others. Obviously it was quite right, in my respectful submission, for you to make that statement because you were giving your reasons; you were not in any way prejudging the arguments which were going to be put to you. Whatever arguments there were would not change the reasons at which you had arrived before the debate started.
My second submission is that you ruled these Amendments out of order, and it should be noted that hon. and right hon. Gentlemen on the other side who have spoken have not dealt with the point of what is in order and what is out of order. They are seeking for you to rule something which in your view is out of order to be in order. In my respectful submission, that is an impossible position, and I venture to put to the Committee why these Amendments are out of order.
I might add in parenthesis first of all that there has been great confusion between the right of discussion and the right of amendment. A lot of arguments can be advanced as to why the House should not pass the Bill as all, because there are various objections to it. That I understand. But it is a rule of this House that wrecking Amendments are out of order. [Interruption.] I am sure that hon. Gentlemen opposite will wait for my argument just as we on this side have waited in perfect silence for all the arguments put forward by them. The fact that they disagree is no reason for trying to stop people speaking.
The Amendments which are wrecking Amendments, are out of order. Let us examine why these Amendments are out of order. The reason is that when the Treaty of Rome was acceded to we acceded to all its provisions. Any Amendment which seeks to amend the Treaty of Rome through a statute is out of order. [HON. MEMBERS: "Nonsense."] Whenever hon. Gentlemen opposite get an argument they do not like they shout "Nonsense". Let them just wait for the argument.
Several hon. Gentlemen have made statements about matters of great constitutional importance, and this Committee is being prevented from discussing a Bill of the greatest constitutional importance. The House of Commons itself has laid down the rule that wrecking Amendments are out of order. If they are wrecking Amendments, the Committee will agree that they are out of order.
The House of Commons is not prevented from discussing anything except by its own rules. If we are discussing Bill "A" we cannot put in things which are to do with Bill "B". There are a whole mass of rules in "Erskine May" and in parliamentary procedure which limit the area of Amendments and discussion. It is irrelevant to say "Because I cannot put forward a wrecking Amendment, therefore Parliament in its unlimited sovereignty is being prevented from doing something of the utmost importance."
A wrecking Amendment is equivalent to saying "The Bill shall not pass". It negates the whole principle of the Bill. These Amendments do that because they seek—[HON. MEMBERS: "No."] This is a difficult argument. What I am saying is that the wrecking Amendments are such that they seek to wreck the whole purpose of the Bill. If passed, they will alter the treaty; and if we cannot bring the treaty into force, that will wreck the whole purpose of the Bill. The purpose of the Bill is to bring Community law into the law of England, and if we alter the treaty that is the end of the Common Market. That is the objective of hon. Members opposite. If this were to happen the United Kingdom would have to say, "That is the end of the treaty unless we rectify the situation later."
The Committee should not invite the Chairman to declare, and it would be wrong for the Chairman so to decide, that something clearly out of order is in order.
Further to that point of order, Sir Robert. Nobody on this side of the Committee is impugning the Chairman's good faith. That matter is not in issue. We submit that the Chairman's interpretation of the rules of order is a value judgment, and we hope to persuade you, Sir Robert, that that judgment is incorrect. We earnestly invite you to consider our representations, which are designed to persuade you that, as a matter of intellectual value judgment, you are for once in error.
The House will await with impatience to hear what the Government Front Bench spokesman says on this matter. I should like to draw attention to one or two relevant matters for your consideration. No doubt, Sir, you have read the Preamble of the Bill, the first part of which says:
The Bill makes the legislative changes which will enable the United Kingdom to comply with the obligations entailed by membership of the…European Economic Community…
That is the purpose of the Bill. Those obligations cannot be imposed without the approval of Parliament, and Parliament is wholly free to reject those obligations in toto or in part.
Parliament should not be denied the opportunity of discussing those obligations, but by Amendment should be able to reject any one of them—not just collectively as a package of many treaties and agreements but in respect of such parts of the package as Parliament may then wish separately to consider and to express an opinion upon. Exclusion of these Amendments makes such a procedure impossible, and stifles legitimate parliamentary discussion of the matters in the Bill.
This is an artificial Bill which seeks to incorporate into our law the terms of the multiplicity of treaties which, if brought into effect, are bound to change our law, to affect the rights and duties of our citizens, to involve the expenditure of vast sums of public money, to affect in an unprecedented way the powers of Parliament, and to restrict the powers of our courts.
On all these matters jointly and severally, collectively and individually, Parliament has an absolute right to decide to what precise obligations our people should be subjected. The Ruling as it stands prevents the House from questioning in detail the merits of individual items in the package. Such questioning, consideration and action to accept or reject is something which Parliament has the right to do, and which it would be in order to do.
I submit that the hon. and learned Member for Northwich (Sir J. Foster) is confusing wrecking the treaty with wrecking the Bill. It may be that rejection by Parliament of part of the package would, as a consequence, involve Ministers in the perhaps painful task of having to renegotiate. If that is so, that is too bad for them, but Parliament has the power, the right, and indeed the duty, to do that where it thinks fit.
It would be intolerable for the Government to shelter behind the package principle. Of all packages, this is the least suitable for such an omnibus approach. It denies the House the rights and facilities promised by the Government to the House. There is no parallel to this Bill. There are dozens, and indeed scores, of international treaties and obligations. To require this House to embark on consideration of the vast avalanche without the opportunity of isolating any part for discussion, for amendment and for decision is contrary to the rules of the House. I hope, Sir Robert, that you will reconsider your decision.
Further to that point of order, Sir Robert. I do not, of course, rise to question your Ruling either on whether Amendments are in order or as to what Amendments should be selected. That is entirely a matter for you. I rise only to repudiate the suggestion that the Government have in any way misled the House on this matter.
As I said on 20th January:
When a treaty can be brought into effect only by an alteration in the domestic law of the United Kingdom, or when it involves the grant of new powers to the Crown, or the undertaking of financial commitments of the kind described by the right hon. Member for Stepney, parliamentary consent has to be sought by the executive to the necessary legislation."—[OFFICIAL REPORT, 20th January, 1972; Vol. 829, c. 697.]
That refers to legislation involving an alteration in the law of the United Kingdom, not an alteration in international treaties. Matters may arise which afford scope for consideration by the House on the method of implementation of our obligations under the treaty. Some of those matters arise in relation to how we fulfil our financial obligations. Clearly, there may be matters to be discussed.
I referred also in that debate to the views expressed by a previous Leader of the House, the late Lord Morrison, when he was discussing the position on the Universal Declaration of Human Rights, then described by Mr. Sidney Silverman as
something quite new in the history of international law, indeed in the history of the world.
In spite of that, the Leader of the House had this to say:
The Government must make up its mind whether it, as a Government, assents to the Treaty. If it does, it must take the responsibility of signing, subject to Parliamentary ratification…We shall, of course, provide facilities for a debate on the issue of ratification. That is the right procedure; the Government must take its responsibility, but Parliament has its full responsibility and the right to disagree with the Government if it so wishes."—[OFFICIAL REPORT, 10th March, 1949; Vol. 462, c. 1400–1.]
In that case there was no alteration to domestic law, and so the question did not arise on legislation.
As to the point made by the hon. Member for Cardigan, Mr. Elystan Morgan, about getting the approval of Parliament in principle, that is, with respect, what the House did on 28th October, when it resolved:
That this House approves Her Majesty's Government's decision of principle to join the European Communities…".
That, of course, as the hon. Member for Cardigan went on to point out—we got the opinion in general of the House—did not deprive the House of its right to oppose the approval of the treaty or to reject it. What it cannot do, in my respectful submission, is to do what my hon. and learned Friend the Member for Northwich (Sir J. Foster) has said is wrong, and that is to introduce wrecking Amendments which would amend the basic treaty.
On this argument about wrecking Amendments which the hon. and learned Member for Northwich (Sir John Foster) introduced, which has just been endorsed by the Chancellor of the Duchy, what is being said is that the procedure that we are about to go through for several months is all bogus; that any genuine Amendment which amends the Bill will not be acceptable. In consequence, the Government are saying by the drafting of their Bill—
We have enough to discuss on Clause 1 at the moment, and I am addressing myself to Clause 1. The scope of this Clause goes so much wider than the normal definition Clause of a major Bill. The fact that your Ruling, Sir Robert, prevents substantive Amendments being presented to this House raises fundamental constitutional points. In that regard, you said that this is a unique Bill, that there is no precedent for such a Bill in the record of the House of Commons. If that is so, how do you base your precedents?
That is central to our argument, because we are saying that in this unique situation it surely is in the interests of Parliament and the country that the widest possible scope should be realised for this Bill. There has been a great deal of dissent in the country and in many Conservative papers about the narrowness in which this Bill, especially Clause 1, has been drawn up. If we are not allowed to widen that scope by searching Amendments—not by wrecking Amendments, but what we believe are justifiable Amendments—I believe that the country and this House are being denied what we were promised, which was the right to scrutinise this legislation.
I am concerned about how you, Sir Robert, have arrived at this decision. I know that you have consulted your officers, your Clerks, who are experts in this matter. I wonder whether during this discussion there has been any discussion between the Clerks and the parliamentary draftsmen who drafted this Bill. If there have, this raises really fundamental points because the parliamentary draftsmen will have been working at the behest of the Government and the Clerks will be giving interpretations of the proposed Bill as they see it. If there has been consultation, this could raise quite serious points for the House as a whole, because it is on the record that the Government have said to this House that we would be free to scrutinise this Bill.
We then find that the Bill is drawn up in a narrow concept. Clause 1 is drawn up exceedingly narrowly. We therefore put Amendments down to open it out, to discuss the relevant treaties and everything which appertains thereto, because we find it much wider than a normal definition Clause. Then we find that your recommendations, Sir Robert, are to prevent the House doing what the Government told us we could do.
I believe that the Leader of the House has a responsibility to this Chamber. I want to know when he is going to answer the points made by my hon. and right hon. Friends on the Front Bench. I believe that this is in the interests of the House, never mind about the Government thinking that they can save an hour or two. There is no time to be saved today. It would be in the interest of the House for the Leader of the House to report progress and to allow a wide-ranging debate to take place in the House tomorrow on a Motion, and for the Leader of the House not to allow a mockery to take place in the name of the Government on the first stage of a constitutional Bill.
You yourself, Sir Robert, have said that the points of order which are being raised are valid and in order. You have said that they are open to discussion. You have given your prepared reasons and your further reasons. Following representations which are being made now, and which will be made by my hon. Friends, it would be wise, if you were in a position to do so, to take further consultation on, and give further thought to, this matter. The House should move on from this business while you are doing it. If later you are in a position to give further information to the House any Motion before the House could be withdrawn, and we could then proceed to the Amendments. If not, it is the duty of the Leader of the House, at the beginning of the debate on a major Bill about which the nation is concerned, and upon which this House is deeply divided, to see that we should not proceed when we have a fundamental, constitutional point to raise.
I would, therefore, ask you, Sir Robert whether you are prepared to consider the representations and perhaps report back to the House either later this evening or tomorrow. It is in the interest of the House that you should do so, and I press that not as a person who is challenging the Chair. I remember the Industrial Relations Bill which went through this House, when the Chair went out of its way to assist in allowing the maximum number of Amendments so that matters could be discussed. This is a Bill far beyond the size of the Industrial Relations Act, far more fundamental to this House, and, therefore, I make these representations, Sir Robert, in the hope that you will respond.
Let me reply straight away to the hon. Member for Salford, West (Mr. Orme).
I want first to get straight this question of advice. The procedure always is that the Clerks of the House are the repository of knowledge of what is and is not in order. They advise the Chair accordingly. They are not in the slightest influenced by what a parliamentary draftsman may have to say. Any hon. Member who has served on a Standing Committee will have seen the Chairman with the parliamentary draftsman on one side of him and the Clerk on the other side. Now and then it is necessary for the Clerk to ask the parliamentary draftsman what is meant by a phrase in a Bill. To that extent, there is some consultation with parliamentary draftsmen. But the Clerks of the House take the full, absolute and unalloyed responsibility for what they advise the Chair to do. There is no question of collusion between the Clerks and the parliamentary draftsmen, and I am sure that the hon. Gentleman did not mean what he said in any derogatory sense.
As for the last part of what the hon. Gentleman said, to the best of my ability I have listened to what every hon. Member has said with a view to seeing whether there are any ways in which I might possibly change my view about what is and what is not in order. I am bound to say in all honesty that I have not found anything that I could do to help the House having regard to the Bill on which I am asked to make decisions. If it were a different Bill, that would be another matter. If it were the kind of Bill that the hon. Gentleman would like to see, possibly there would be no difficulty and I might select a lot of the Amendments. But I have had nothing to do with the drafting of this Bill. I have to say what I find, and then act upon it.
Further to that point of order, Sir Robert. The discussion during the last hour has had a wholly unreal atmosphere, and the word will go out to the world, unless something is done to change the Ruling that you have given us, Sir Robert, that Parliament is being gagged and that our proceedings on what is probably the most important constitutional Bill of our time have been reduced to a mere charade and a farce.
Over the years you have amassed a great deal of experience. Indeed, I have sat at your feet to listen to your decisions on important and controversial Bills. However, this Bill is wholly different from any other that has ever come before this House. So, whatever precedent may be available to the learned Clerks, they cannot deal with a situation which alters completely the constitution of the country for ever and a day.
I seek your assistance, Sir Robert, on some of the points which have been made so far. Either your decision is right—and, with respect, I question that—or the Government have misled the House totally in the quotations that we have had from my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot), and in the promises and statements that were made that Amendments would be allowed and that there would be a full discussion pertinent to those Amendments.
I should be the first to agree that wrecking Amendments would be out of order. But at no time did I hear you say one word to the effect that you were rejecting any Amendment because it was a wrecking Amendment. The first indication that we have of that came from the hon. and learned Member for Northwich (Sir J. Foster). He was the first hon. Member to mention the word "wrecking". He was followed by the Chancellor of the Duchy of Lancaster, who seized on it like a drowning man clutching at a straw. However, at no time did you suggest that you had rejected an Amendment because it was a wrecking Amendment.
I ask you to assist the Committee, Sir Robert, by saying whether you regard any of the Amendments that you have rejected in any way as wrecking Amendments. If you do that, I am sure that it will clear the air and put the Government firmly in their place on that issue.
My hon. Friend the Member fo Salford, West (Mr. Orme), asked whether there had been any discussion between the draftsmen and the authorities of the House. I am not suggesting any impropriety, nor did my hon. Friend, but in order to put the matter beyond doubt it is important that we know whether any indication was given either to the draftsmen or to the Government of the advice given by the authorities of the House to you, Sir Robert, and about what would be the likely course of action. If any such indication was given, either formally or informally, over the last few months while this Bill was hatching, that should be made abundantly clear to the Committee so that hon. Members may know. I repeat: was there any indication, formally or informally, given by the authorities of the House to anyone involved in the Government machine as regards the advice that would be given to you and about what might be allowed by the Chair by way of Amendments.
You also said that this was not a Bill to approve the Treaty of Accession. I should be glad to hear the logic of your argument on that point. What has led you to form the conclusion that this is not, in effect, a Bill to approve the Treaty of Accession? Other treaties are embraced in this Bill. However, in January of this year we discussed the Treaty of Accession. I should like to know why this is not a Bill, in effect to approve the Treaty of Accession. If you were satisfied that it was, in effect and in spirit, a Bill to approve the Treaty of Accession, would that affect your judgment as as regards the Amendments that you have not selected?
Finally, you have differentiated between Amendments which are out of order and others—we are told, a minority—which you, exercising your discretion, have not selected. I should like to know, taking each Amendment in turn, those which are rejected because they are out of order and those in which you have exercised your discretion and not selected.
Those are matters on which you can assist the Committee in coming to a conclusion about the rightness or otherwise of the decision which has been reached.
I do not feel that I have to deal with, to criticise, or to offer any comment on what the hon. and learned Member for Northwich (Sir J. Foster) said.
I think that it would be very unwise for me to enlarge upon what I have said. We might get into considerable confusion if I tried. I have made my position clear. Perhaps I might repeat what I said:
In a word, the Bill provides the legal nuts and bolts which are necessary if the United Kingdom is to be a member of the Communities. It is not a Bill to approve the Treaty of Accession or any of the other treaties which are basic to membership of the Communities. If it were such a Bill, then, of course, every article of these treaties would be open to discussion and the majority of Amendments to Clause 1 would be in order.
That is the situation with which I am confronted, and it would be unwise for me to accept the invitation of the right hon. Member for Aberavon (Mr. John Morris), which I know was made in all sincerity, to try to help the Committee. I must ask the right hon. Gentleman to take it from me that it would be wrong for me to go beyond what I have said.
Further to that point of order, Sir Robert. I rise only for a moment on one short but, I think, relevant consideration in the hope that you may give some guidance for the assistance of the Committee. I preface it by affirming and, indeed, asserting my entire belief in your good faith in this and in all matters and also in the conscientious and industrious objectivity which you bring to the duties of your high office, which have the respect of the whole Committee. I should like to include in that reference the Clerks of the House.
I seek your guidance upon this point. When you gave your reasoned statement why, in your view, these matters were not in order, you founded your decision on a recitation from the opening words of the Explanatory and Financial Memorandum. Although that memorandum has been referred to as a preamble this afternoon, I think that it is right to say that it is not a preamble in the statutory sense. Very few Bills now contain a preamble in the sense that older legislation had a preamble. The Explanatory Memorandum is not part of the Bill and has no statutory force when the Bill comes to be enacted. What is part of the Bill and what does have statutory force when it is enacted is the Long Title of the Bill.
You, Sir Robert, referred not to the Long Title but only to the Explanatory Memoradum. A comparison of these two parts of the Bill shows a marked difference. The wording of the Explanatory Memorandum is:
The Bill makes the legislative changes which will enable the United Kingdom to comply with the obligations entailed by membership of the
various treaties. Those are non-statutory words, but they are narrow enough to give force to your description of this as a Bill to provide the nuts and bolts for entry to the Community.
When we look at the Long Title we see different language:
Bill to make provision in connection with the enlargement of the European Communities to include the United Kingdom".
Those are much wider words. It may well be that Amendments which might be out of order on the wording of the Explanatory Memorandum, were that the appropriate test, would nevertheless be in order on the wording of the Long Title, assuming, as I think must be right, that that is the appropriate test.
Therefore, the questions which, with respect, Sir Robert, I should like to ask you for the guidance of the Committee are: first, is it right that your Ruling as to order was taken on the basis that the criterion of judgment was the wording of the Explanatory Memorandum, which you recited in your reasoned statement; and, secondly, if that be so, is it right that the correct criterion is not the wording of the Explanatory Memorandum, which is non-statutory, but the wording of the Long Title of the Bill, which is wider in this case?
I think that I can see my way through that one. The Explanatory Memorandum is indeed what it purports to be: something which explains the scope of the Bill. Every Explanatory Memorandum tends to enlarge upon and use additional words to what is contained in the Long Title of the Bill. I cannot see any serious discrepancy between the memorandum in which the scope of the Bill is described, and the Long Title. Therefore, I do not feel that the right hon. and learned Gentleman's point is one of real substance for me.
Further to that point of order, Sir Robert. The Committee is now clearly in grave difficulty and the Chair itself is in a serious position because of the dispute which has arisen this afternoon. You suggested and took the view that many of the Amendments which you have not selected were out of order because of the nature of the Bill itself. If that is the case, then clearly one can with justice accuse the Government of having been on shifty ground and of deliberately misleading the Committee on the basis of statements which have been made previously.
Perhaps I may interrupt the hon. Gentleman. I am sure that he will realise that that is nothing to do with me. All that I can answer on today is what I have to do. I cannot be answerable for whether the Government have or have not misled the Committee. All I have to do is to adjudicate upon the Bill before the Committee. I do not wish to cut the hon. Gentleman short, but we should try to keep to the points of order exactly as they are.
I accept absolutely your explanation and Ruling, Sir Robert. However, I was taking the view that what I was saying, before you interrupted me, was merely a relevant preamble to the more general proposition and point of order which I was putting.
A number of highly learned points of order have been raised by right hon. and hon. Members on both sides of the Committee who are members of the legal profession. I am not a member of the legal profession. I am raising what seems to me a very simple but basic point of order. Back benchers on both sides of the Committee, while respecting the opinions, views and decisions of the Chair on any issue, nevertheless look to Mr. Speaker and to the Chairman not only for protection, but for guidance. It is on this basis that I am addressing and asking you for protection.
It is the case that Mr. Speaker and yourself, Sir Robert, as Chairman of Ways and Means, listen to the advice and accept the guidance of the learned Clerks when Bills come before the House and there is a question on the selection of Amendments. However, this is no ordinary Bill. It is a Bill without precedent which I submit should not be governed tightly in the consideration and selection of Amendments by earlier precedents.
I could not help feeling, when the hon. and learned Member for Northwich (Sir J. Foster) was making his submission. that that kind of submission would cut very little ice with the majority of ordinary people throughout the land who are violently opposed to the measures which this Government are proposing in the Bill and who certainly would not understand, the right hon. and hon. Members on this side of the Committee do not understand, why there should be such restrictions on the selection of Amendments and on a debate on a Bill which is unprecedented and takes powers away from the House of Commons to a degree to which no previous Bill has done.
As the Bill is unprecedented, as it takes away and massively removes powers from the House of Commons, I submit that, although you would listen to the advice given by the learned Clerks, you should not in entirety be bound inflexibly by their advice—I am not criticising the Clerks in any way—because we are now facing a major historical decision which will have an effect on the lives of men and women in this country over future decades and generations.
I hope that in reconsidering your decision, Sir Robert, you will take into account not only the unprecedented nature of the Bill but the views of the large body of opinion in the country which certainly would not understand restrictive rulings, and that you will exercise, as only you and Mr. Speaker can, adequate protection for right hon. and hon. Members on both sides in this matter so that they can properly air their views and discuss these matters which so deeply affect all people throughout the country.
Order. There is no question of hon. Members saying, "Further to that point of order." I will deal with any hon. Member who wants to put a point of order—within reason, anyhow. There is not really any serious point of substance that is new in what the hon. Member for Rotherham (Mr. O'Malley) said. It may be that people outside will think that the Chair has acted in a harsh way because they do not know the rules by which we are bound. But the Chair is bound to act in the way it always does act. The mere fact that this is a unique Bill or a highly unusual Bill makes no difference. There may be another Bill next year equally unusual. We have to watch the precedents in these cases. These rules are not made to be difficult. They are made for the benefit of the House and for the benefit of the free society which the House has set up in this country and which has been a pattern to the world.
On a point of order, Sir Robert. The House will be grateful to you for confirming that, however unprecedented the content of the document before us may be, it is still a Bill and, therefore, as it is a Bill the rules of order as they apply to Bills apply to the document before us. It may be that if it was not a Bill we could have a different kind of rules of order, and that would oblige the hon. Member for Penistone (Mr. John Mendelson) and his hon. Friends. As it is a Bill, we can have the rules of order to which we are used.
I seek guidance on this point, Sir Robert. Is it correct that this is a Bill which cannot be amended if the effect would be to frustrate its purposes, to alter the terms upon which we would then seek to enter the Common Market but, nevertheless, is a Bill that can be rejected wholly because it is within the power of the House to reject wholly the terms of entry into the Common Market?
Is it not also true that we can discuss it in detail because we have the oppor- tunity to discuss it Clause by Clause and we have the Question proposed to us, as the rules of order apply, about each Clause "That the Clause stand part of the Bill"? Therefore, we are not precluded from discussing in detail everything that may come into each individual Clause. I am asking for your guidance on this matter, Sir Robert. But as it is impossible to go through a marriage service and emerge afterwards in a state of being half married, the Committee should clear its mind on this matter. It is faced with the necessity of being either married or single.
Having said that and having tried your patience, Sir Robert—and without the assistance of the Opposition Chief Whip—may I ask whether we are not in danger of creating some new precedent by making your Rulings debatable? May I have an indication as to how long your patience is likely to continue?
I think that I should be unwise to go any more into the detail of my Ruling than I have done. The hon. Gentleman is quite correct when he says that all these matters can be discussed in the debate on the Question "That the Clause stand part of the Bill", as far as they are in order. Therefore, I can assure the hon. Gentleman on that.
I ought to say to the Committee that we have now had two hours of points of order, and I have done my best. I shall certainly not curtail the points of order right away, but I wish to sound a note to the Committee that, obviously, we do not do ourselves any good, or anything else any good, by continuing for too long with these points. Therefore, I hope that hon. Members will make them as concisely as they can. I shall certainly call a few more hon. Members if they wish it.
Further to the point of order, Sir Robert. It would be rather useful if we were to return, as you have indicated, to the original submission made by my hon. Friend the Member for Ebbw Vale (Mr. Michael Foot) when he first put the point of order we are debating. Therefore, I shall ignore the constitutional nonsense of the hon. Member for Woking (Mr. Onslow).
But I cannot completely ignore the submission made by the hon. and learned Member for Northwich (Sir J. Foster). His was a perfect example of begging the question. All examples of begging the question should be taken from the textbooks on logic and should be replaced by the speech of the hon. and learned Member this afternoon. He would then receive some fame on this subject. He took it upon himself to tell the Committee what these Amendments are in character. He pronounced that they were wrecking Amendments. But we have not heard one word from you, Sir Robert, that they are regarded as wrecking Amendments. From where does the hon. and learned Member take the authority to make this pronouncement? He has no right to say anything of the kind. Therefore his contribution is wholly partisan and wholly valueless.
The point to which I wish to return is one that you, Sir Robert, are directly concerned with and have pronounced upon this afternoon. That is the very important point of the nature of the advice you have received and how it was arrived at. The Committee is entitled to probe a little more deeply the kind of consultations that have taken place between the Clerks of the House, who are your advisers, and the parliamentary draftsmen. As we all know, parliamentary draftsmen work at the behest of the Government in framing the legislation. I make no complaint about that; it would be silly to do so. But in the course of framing the legislation, in such close contact with the Executive and the Government, and with the very nature of the case, they cannot help becoming very closely involved in the kind of tactical manoeuvring in which the Government are engaged. Obviously, a matter of capital importance for the right hon. and learned Gentleman the Chancellor of the Duchy and the right hon. Gentleman the Leader of the House is the tactical decisions they have to make before they have instructed the parliamentary draftsmen.
It so happens that a good deal of this is on public record, because on an earlier occasion in the House, before 28th October—the right hon. and learned Gentleman the Chancellor of the Duchy has referred to that date and to what happened then—I sought to elicit from the Government the nature of the legislation that the Government had in mind to introduce if the House were to be asked by the Government to accede to the Treaty of Rome and the other treaties and to become a full member of the Common Market. I was given no answer. The vote was taken on 28th October at 10 p.m. I know not whether the chief political correspondent of The Times happens to be in the Gallery at present; he is a very good attender and may well be there. But I speak with the same knowledge as anyone who read that newspaper on 29th October. It contained an inspired story emanating from the Government that in collaboration with and partly on the advice of the hon. and learned Gentleman the Solicitor-General, original plans to introduce two Bills, a shorter Bill dealing with the Treaty of Accession and a very long Bill of several hundred Clauses, had been abandoned, and that a different kind of Bill altogether would be prepared by the Government. That was the information, and that was the first time that we heard that this was the course they were now taking.
These tactical decisions by the Government, which I tried to elicit in good time and which they refused to explain until the vote had been taken on 28th October, were decisions that they would then use as guidelines for their instructions to the parliamentary draftsmen. They would have to take the essential political as well as the tactical decision. They changed their mind about this. Having taken their decision, they then got the help of the parliamentary draftsmen, who are public servants and have to do the work they are asked to do, rightly, and they would then have the kind of drafting that was wanted.
I return to the point on which you, Sir Robert, gave some information to the Committee. At a later stage, when your direct advisers—I do not call the parliamentary draftsmen your advisers; that would be wrong—the learned Clerks of the House have consultations with the parliamentary draftsmen directed to offering their advice to you, Sir Robert, as they are rightly obliged to do, they will then have been inspired in these consultations one step removed by the tactical intentions of the Executive. This is an essential and very important point, Sir Robert. We are asking you to tell us more about how these consultations were conducted and what influence might have been exercised by the parliamentary draftsmen not on the good faith—that is not in question—but on the judgment of the Clerks who in turn gave their advice to you.
I turn to the second point that I think is equally a point of substance concerning the nature of the decision you had to make, ignoring the valueless case made by the hon. and learned Member for Northwich that these are wrecking Amendments. These are not wrecking Amendments in fact or intention but are carefully drafted substantial Amendments to try to open up debate on matters of the greatest possible importance. Basing myself upon this fact and intention which can clearly be seen in the nature of the Amendments I will now deal with the second point of substance [Interruption]. I know you have always listened to all of us with the greatest courtesy, Sir Robert, and it can only be the fault of the Patronage Secretary having discussions with you now that has caused this disturbance. He had better get back in double quick time to his corner seat and keep quiet during this discussion.
The second point of substance I was coming to very much involves the Leader of the House as well as the whole of the Treasury Bench. Obviously Clause 1 is of vital importance as you have said, Sir Robert, but I would like to submit that what is called a declaratory Clause in other Bills is in this case more than simply a declaratory Clause. Just before I rose to speak, an hon. Member said that all these things could be discussed on the Question "That the Clause stand part of the Bill". The Prime Minister was here a short while ago and I tried to whisper across to him that surely he would not have argued like that when he introduced the Resale Price Maintenance Bill several years ago when he was President of the Board of Trade. That Bill occupied the House and the Committee for many weeks. The Prime Minister would not have argued that we could discuss a Bill such as that without moving Amendments to it. Some of the Amendments put down to that Bill occupied the work of the Committee for a whole day from 3.30 p.m. to 11 p.m. with the consent of the right hon. Member who is now the Prime Minister, who would never have dreamed of taking that Bill without Amendments. There is a direct parallel between that Bill and the Bill we are discussing now apart from the first declaratory Clause. The parallel is that in the long Committee stage on the Resale Price Maintenance Bill, Amendment after Amendment was moved seeking to argue that the Bill should apply except in the case of the pharmaceutical industry, for example. Another Amendment might have sought to exclude photographers' shops.
Many hon. Members have served in the House of Commons longer than I have and will remember the many days that were spent on that Bill in Committee. It was a debate of fundamental importance. None of those discussions would have been possible without an Amendment having first been moved. It was in the nature of the case that the matter such as the exclusion of the pharmaceutical industry could not be debated on the Question "That the Clause stand part of the Bill" and this makes nonsense of the soi-disant argument that the hon. Member was trying to put forward.
We normally understand a declaratory Clause to be a Clause which only states what is self-evident. This Clause is completely different and it arises from your pronouncements this afternoon, Sir Robert, that this is an extraordinary Bill which is quite different from other Bills. I had to smile, with the greatest respect, when you said that we might have a similar Bill again next year. I could not quite conceive of the sort of Bill that would be. I could not imagine the Chancellor of the Duchy of Lancaster asking us to join any other community somewhere else in the world.
This is a declaratory Clause only in name. If unamended and passed to the House on Report and Third Reading, it would commit us to saying that the Parliament of the United Kingdom accepts for the first time matters that have been decided by the Six but which have never been accepted by the House of Commons. That is the nature of the Clause and therefore it is not a declaratory Clause. It is a Clause of great substance. That is why I return to the point made by my hon. Friend the Member for Ebbw Vale, who submitted that this is not a declaratory Clause pure and simple but is a clause of substance and it is absolutely essential to move Amendments to it in the widest sense, a course of action which you have now rejected. It is on all these submissions that we have made to you, Sir Robert, particularly the submission by my hon. Friend, that we ask you to reconsider your decision.
You have said three times this afternoon that this is only a provisional decision. Those were your words. You should now give us more reasons why you are so prepared to reconsider.
I am much obliged for the good nature and the good temper of the hon. Member and of every hon. Member in making points of order after what must be a very trying period. The hon. Member mentioned the question of the Clerks and the draftsmen and what went on. Nothing has gone on in this Bill which does not go on in every Bill except that it is, perhaps, more difficult in a Bill of this sort.
As to the rest of what the hon. Member has said, however, I am sure he will not think it discourteous of me if I say I do not think it added greatly to the sum of wisdom which the Committee has given me this afternoon in seeking to persuade me that I have come to a wrong conclusion. I ask the hon. Member for Penistone not to think that I am being facetious, because I am not. I am not so persuaded. The Committee in its wisdom must take what steps it deems right in the circumstances. Up to now, despite the many learned disquisitions I have heard, I have not in honesty felt that I could change my mind.
I have been most anxious to hear the representations from all quarters, and so have not intervened until now. I realise that the Committee is placed in a difficult position. I hope that what I am about to say will help the Committee to proceed with our business in an orderly fashion, as all hon. Members will wish.
The hon. Member for Ebbw Vale (Mr. Michael Foot) has given notice that he will move a substantive Motion criticising your selection of Amendments, Sir Robert, and he has asked me for time for that Motion. The Government will give time for it tomorrow. I am meeting the hon. Gentleman's request at the earliest possible opportunity.
You have heard many submissions, Sir Robert, on what you described as your preliminary selections. You have said that so far they have not led you to the view that you would necessarily wish to change that selection. As the first Amendment to be called takes a number of others with it, including some of the early ones, and as very wide questions on the substance of the Clause are raised, while I quite accept the point of the substantive Motion tomorrow, would it be reasonable to proceed to discuss that group of Amendments, entirely without prejudice to what might be decided later, in view of the Motion tomorrow and anything else that might be raised on that basis? Surely it would be sensible for the Committee to have a debate on one issue without prejudice to what might be decided thereafter.
I am grateful that the Leader of the House has accepted our suggestion. It is essential that a Motion criticising the Chair be debated as soon as possible, allowing for the necessity to inform Members of such important business. Therefore the earliest possible time for debate is 3.30 tomorrow afternoon.
As for the right hon. Gentleman's second proposal, although I am addressing the Committee on a point of order, it is not solely a question of order. The matter could be better dealt with on a Motion to report Progress. If the right hon. Gentleman were to move such a Motion, I imagine that the Chair would accept it and we could then discuss going to the first Amendment selected without having to relate everything we say to the question of order. That would be the better course. In such a discussion I should have to repeat that it would not be suitable for the Chair, for the Committee, or for the orderly conduct of business to proceed with the discussion of Amendment No. 96 and the Amendments associated with it, because about six pages of Amendments would have been overlooked we should have passed them by. I am not saying that the right hon. Gentleman's suggestion is a device or anything like that, but he is suggesting that we should accept the Ruling of the Chair as it stands. [Interruption.] That would be the meaning if we proceeded—
One way of getting round the difficulty would be for my right hon. Friend to move that consideration of the Bill up to Amendment No. 96 be postponed until after consideration of that Amendment. By that means the Committee would preserve the right to consider those earlier Amendments until after the debate on the substantive Motion. That would enable discussion to proceed on the Amendment which we all agree is in order.
The whole Committee listens to the right hon. Gentleman's views on questions of procedure with the greatest care, because he has more experience of it than anyone else. But if we debate Amendment No. 96, even after passing a Resolution preserving the possibility that the earlier Amendments will be taken, we shall still be truncating matters. I could go into this in some detail although, as I have suggested, it would be more in order if I were saying it on a Motion—
Order. I interrupt for no other purpose than to try to assist the hon. Gentleman and the Committee. I have ascertained from "Erskine May" that it is possible to do what the Leader of the House proposes if the Committee so wishes, provided the Bill is not altered in any way. If it is altered, the Committee cannot go back. The exact words are:
If the amendment is agreed to, no amendment affecting the main question at an earlier point may be moved. If, however, the amendment is rejected or withdrawn, the main question is open to amendment as far back as the last point at which a decision was made on an amendment.
I believe that the Committee, having listened to your intervention, Sir Robert, will agree that if we try to proceed to discuss the matter in the way suggested by the Leader of the House we shall get into a tremendous muddle. It would not be the normal way of dealing with such a matter, even though there have been cases in which the suggestion of the right hon. Member for Thirsk and Malton (Sir Robin Turton) has been followed.
We are discussing a Bill of major consequence and awaiting the debate that will take place in the House tomorrow on the Ruling of the Chair, which goes to the root of the whole Bill. We shall have a debate tomorrow that will range over the whole question of whether the Amendments are in order, whether there should have been a different selection and whether the only remedy for the situation is to withdraw the Bill. I understand the Government's desire to get their business through, but what has been suggested would be a most disorderly way of doing it.
I do not wish to drag the Chair into these controversies more than is necessary but it must be noted that we on this side, and perhaps other hon. Members, question the Chair's Ruling. We have taken the only orderly way of questioning it. I acknowledge at once that I am not criticising your integrity, Sir Robert—I have no right to do so. and do not seek to do so—or your judgment in one sense, but I am criticising the advice you gave the Committee, and I want to criticise it in the only proper way the House provides. After Rulings that will affect what happens in the future, we cannot proceed with the Bill until the matter is cleared up I know the Leader of the House will lose some of his time, but these are matters that must be dealt with.
The Leader of the House should now propose that the Chairman ask leave to report Progress and beg leave to sit again. Such a Motion would presumably be accepted by the Chair. It might be accepted if I moved it; I believe that the Chair would be in order in accepting it if I did so, but I do not wish to embarrass the Government if they are prepared to move it. If the Government did that, I presume that the Motion would be carried very soon and we should proceed to the debate tomorrow. That would mean that the Government had lost some time on the Bill, but the House of Commons would have established its right to discuss this matter in a proper way.
I suggest that the best service that the Leader of the House can do to the House of Commons as a whole in this respect is to accede to the suggestion I have made. Everyone who has listened to this discussion would concur in the view that if we now proceed to pounce into the middle of the Clauses and try to discuss them on the consideration that we might be able to go back if an Amendment is carried, that would be a most disorderly way of discussing affairs. I think hon. Members on both sides of the Committee would agree about that. I earnestly suggest to the Leader of the House that he should accede to the suggestion I have made, which I believe is in the best interests of the House of Commons as a whole.
Further to the point of order. I thought I had made a reasonable proposition, Sir Robert, and I still think so. I was reinforced in that view by my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) with all his experience. I am making a suggestion which seems a wholly reasonable one without prejudice for the future. I should have thought that in all the circumstances that would be a reasonable way of proceeding at this stage. I urge on the Committee that this is a perfectly reasonable and sensible way. [HON. MEMBERS: "No."] I am only suggesting this and it would be entirely without prejudice.
I have been listening to hon. Members for a long time, and I think they might allow me to be heard for a moment. Without prejudice, I would move such a Motion as my right hon. Friend the Member for Thirsk and Malton suggested. Further I would undertake, as that debate would clearly take some time and would raise quite wide issues, in order to meet the point which you, Sir Robert, made, not to suggest that the House should come to a conclusion today or before the debate on the Motion tomorrow. I think it is a very reasonable proposition. I am meeting the point which you have put forward and I would undertake that the House should not be asked to come to a conclusion at the end of such a debate. I suggest that the House might decide to adjourn proceedings round about ten o'clock having been given the under- taking that we would not come to a conclusion on this matter tonight.
I understand the spirit in which the right hon. Gentleman has made his suggestion. It would be churlish not to acknowledge that, but I must still say to him that I do not believe that what he has proposed will enable the House of Commons to deal properly with the Bill.
Anyone who listened to the previous representations made from all parts of the Committee would agree that they questioned the Ruling of the Chair. The Ruling of the Chair has governed the selection of Amendments. The first Amendment which has been selected—this is an illustration of the whole of our case—is Amendment No. 96, which would be the one we would proceed to discuss, but that was put down only late last night. That was because we feared, as has actually occurred, that a large number of other Amendments more clearly stating the far-ranging nature of the Bill, were propositions which would be ruled out of order. What we would have to do, if we followed the suggestion made by the Leader of the House, would be to start discussion in Committee on this most important Bill on a secondary technicality. We would be discussing Amendments in an order to which we object most strongly. If the Committee is to continue to discuss in this fashion it will get deeper and deeper into muddle.
I say in all seriousness to the right hon. Gentleman that although I understand that he has attempted to meet the wishes of the Committee, what has happened is as follows. As my hon. Friend the Member for Cardigan (Mr. Elystan Morgan) said when raising a point of order, we had a Ruling from the Chair which I believe surprised hon. Members in all parts of the Committee by the form in which it was stated. It certainly must have surprised members of the Government for reasons which have been indicated, because the Government have been giving us a different indication all through previous weeks. It certainly surprised many of my hon. and learned Friends and me because it was so far-reaching in what was said. If we accepted it, it would influence the kind of Amendments which could be selected for the whole of the rest of the Bill.
So I say to the Leader of the House and the Committee as a whole that the only proper way for us to settle this question is, first, to ask the House to consider a substantive Motion tomorrow which says that in our judgment the Ruling by the Chairman of Ways and Means gravely infringes the rights of the House of Commons. We say that, as we are entitled to say and can only say, in a substantive Motion, but we go further and seek in the Motion a remedy for the situation to take account of what has been said in this discussion. Therefore, our Motion will say that there should be either a whole new range of selection of Amendments, or the Bill should be withdrawn so that it can be presented in a proper parliamentary form. We say that these are two remedies for the situation, two remedies which incidentally do not raise the question of the fundamental principle of the Bill. They raise the question of the rights of the House of Commons.
When the House has to consider a Motion of that scale and extent, despite the manner in which the Leader of the House has done it, it is asking too much to require that we should start the Committee stage on what, compared with that, are matters of a minor nature. I ask the right hon. Gentleman to do what I have invited him to do on two or three occasions in these discussions. I ask him either to put this discussion in order so that by moving to report Progress we may continue discussion on that basis, or to move to report Progress to bring the discussion to an end and then have the debate tomorrow. Then the House will be able to give its opinion on the whole question, and that may assist in later progress with the Bill. Because we feel so strongly that we cannot continue discussion of the Bill under the shadow of a Ruling which we believe is disruptive of the rights of the House of Commons, we ask that the shadow should be removed.
On a point of order. May I make my position once and for all perfectly clear Sir Robert? I believe I have been extremely reasonable. I was asked to provide time for a substantive Motion at the earliest opportunity and I did so by saying that it could be considered tomorrow. I checked with the Clerks whether it was possible for me to accept a manuscript Motion and to have the debate today but I was informed that that would not be in order.
Otherwise I would have given the very first opportunity. As it is I have given tomorrow. I have then made the proposal that we should without any prejudice to earlier Amendments start on a discussion which would not be brought to a conclusion. Therefore, any previous Amendments could be taken up at a later stage.
I would have thought that all of this made a thoroughly reasonable proposition without any prejudice to the Motion to be moved tomorrow. I am sorry that the hon. Gentleman does not feel able to accept this. I feel that it is a perfectly reasonable proposition, particularly following what my right hon. Friend the Member for Thirsk and Malton (Sir Robin Turton) has said. If the hon. Gentleman does not feel able to accept that and wishes to debate further he can move another Motion.
I am sorry, I am on a point of order. The hon. Gentleman will have his opportunity. I would be grateful if you would tell the Committee, Sir Robert, exactly what happened about the proposed vote. Some of us thought that you had put the Question and that the Motion had been carried.
I was engaged in putting the Question when I discovered that a Member of the Committee wished to take part in the debate. The right hon. Member for Battersea, North (Mr. Jay) rose to begin to speak, but for some reason best known to himself decided he would not go on speaking. Mr. Nott.
On a point of order. Sir Robert. I think that what happened is perfectly clear, and I also believe that it was not in the way you described. The understanding of myself and almost everyone in the Committee was that the Question was put and carried. [HON. MEMBERS: "Hear, hear."] I have no idea why my right hon. Friend the Member for Battersea, North (Mr. Jay) got on his feet, but that was the situation.
No, that is not my understanding of the case. The Committee knows me well enough to know that there is no intention on my part—there never has been and never will be—of trying to pull a fast one on anyone. I honestly thought at the beginning that there was no one rising. When I saw the right hon. Gentleman I did what every Chairman does in similar circumstances, which often happen here and upstairs, and called him. I now call Mr. Nott.
On a point of order, Sir Robert. I wonder whether before we proceed we can now discover at what point we are. As I understand it, we had a Motion to report Progress, which was accepted by the Chair. That Question was put. The voices of the "Ayes" were quite clear and loud. The voices of the "Noes", if any, were subdued. In other words, the vote had been taken, and it seemed to me then that the whole thing had been wiped out.
On a point of order, Sir Robert. Might I make a suggestion to the Committee. We are obviously getting deeper into trouble. I still maintain that I was thoroughly reasonable. However, I think that in all the circumstances the best thing I can do is to suggest to my hon. and right hon. Friends and to the Committee as a whole that the Motion moved by the hon. Member for Ebbw Vale (Mr. Michael Foot) should be accepted and we should proceed to the substantive Motion.