European Community Secondary Legislation

Part of the debate – in the House of Commons at 12:00 am on 24 January 1974.

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Photo of Mr Ronald Murray Mr Ronald Murray , Edinburgh Leith 12:00, 24 January 1974

Hon. Members on both sides, and especially those who served on the Select Committee, have emphasised that the report represents the irreducible minimum of what the Committee feels should be embodied in the proper procedure for scrutiny for European secondary legislation. I emphasise that, and in a moment or two I shall come back to the central part of that unanimity and the importance which it has as a starting point for progress towards satisfactory scrutiny of this new legislation.

In this connection it may be convenient if I refer to the amendment which appears on page xxxvii of the report, to which my right hon. Friend the Member for Stepney (Mr. Shore) directed attention. I do not wish to detract from the point about unanimity, but it is right to draw attention to this amendment if only because it offers a constitutional peg on which to hang a much more stringent type of provision for parliamentary scrutiny of and participation in European secondary legislation. The important passage is to be found halfway through the amendment, on page xxxviii: For the United Kingdom this poses a constitutional and legal paradox. For legislation by the executive is expressly prohibited by law and constitutional practice in the United Kingdom"— and reference is then made to the well known Case of Proclamations, the Bill of Rights and the Scottish Claim of Right.

This is the field which was aptly christened "prerogative legislation" by the right hon. Member for Wolverhampton, South-West (Mr. Powell). The importance of it is that if Ministers do not have a power and there is still a constitutional block of some kind in terms of our law prohibiting them from taking part in this kind of legislation, that could be used, if, for example, an enabling Act was passed to give them the powers, in order to attach various safeguards to that enabling Act to ensure adequate scrutiny of the measures to which the deliberations of the Council of Ministers gave rise.

It is said—I think that it was said in the debate on the amendment in the Select Committee—that Section 2 of the European Communities Act 1972 confers such a power. Plainly, that is not said expressly, though it may be by implication. Section 2(1) provides—I select only the relevant words— All such rights, powers … 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". Obviously, no express power is given to our Ministers to legislate by prerogative methods in Brussels if they cannot do it here. Perhaps the matter could be presented in this way: Section 2 of the European Communities Act provides for the direct application of Brussels legislation in our law, but it does not touch directly or expressly on the question of the actual making of that which is to be applied here. I illustrate the point by analogy. The bus is authorised—indeed, commanded—to proceed direct from Brussels to Westminster, but nothing is said about the driver. Naturally, the bus must have a driver, but not only is he not given a licence to drive but, by the constitution of this country, the driver is disqualified from driving, that being the effect of the Case of Proclamations and our other constitutional laws and conventions against prerogative legislation. Thus, although the bus can be driven, our Ministers are at present prohibited from driving it.

That difficulty, if it be genuine, could give rise to two types of solution. It is important that it should be faced, and the Government have not faced it so far. First, there could be express provision for an enabling power. The Opposition would certainly not contemplate any enabling power which did not have the most stringent parliamentary safeguards attached to it for scrutiny of this legislation. The other alternative, which, perhaps, would attract the Government rather more, is that when this legislation is being reviewed care should be taken to see that our ancient constitutional liberties enshrined in statutes and documents of great importance should be continued and have their importance recognised by an appropriate amendment in a future Act of Parliament. It is wrong to disregard these important constitutional conventions in the way the Government have so far done.

For reasons of that nature, I regard the core of unanimity and the recommendation made by the Select Committee as so important. As far as I can tell, that unanimity is supported by all those who have spoken so far today. The core of it is that we must, as soon as possible, have the type of practical scrutiny which is recommended. Admittedly, it will be deficient—one would want more, and so on—but we must have at least that.

In a way, when one speaks of prerogative legislation in this context one is conceding too much, for what comes out of Brussels is not legislation in the sense in which this House legislates. It is legislation by barter. It is not the result of a rational process, with people sitting down and thinking about what should be done for the benefit of a particular community. It is legislation which emerges from bargaining in the market place, legislation by barter, so all the more must it be scrutinised with the maximum care by the House of Commons.

In at least one legal journal—in fact, this has been said in more than one, I think—there has appeared an implied criticism of the work of the Select Committee. The writer says that domestic subordinate legislation which implements the provisions of directives was given little attention in the report. I regard that as unfair to the Committee, for in paragraphs 33 and 41 of the report directives are expressly included as among the important proposals for legislation which members of the Committee think a scrutinising committee ought to see and about which it should have the maximum possible information.

Admittedly, domestic subordinate legislation implementing directives was on the margin of the Committee's terms of reference, but we went beyond the literal limits, as the hon. and learned Member for Northwich (Sir J. Foster), who so ably chaired our proceedings, pointed out. The Committee also had some evidence about the difficulties to which domestic subordinate legislation stemming directly or indirectly from the European Community would give rise, and that matter is touched on in paragraph 57.

It would be wrong to give the impression that members of the Select Committee did not fully realise that, were the full implications of all these difficulties to be spelled out, not only would our report be intolerably long but we should, in effect, be usurping to ourselves a function which the House as a whole ought to take up in due course as it goes along.

If one starts with the core of recommendations which we put forward—I believe that members of the Committee will agree with me here—one can see how the procedure goes and see in an empirical and practical way what effects it has on the ordinary procedure of the House. One would be very sanguine to suppose that quite drastic changes in the procedure of the House are not implied. I think that my hon. Friend the Member for Berwick and East Lothian (Mr. Mackintosh)—he is not in his place at the moment—underestimates the significance of the core of unanimity presented in the report of the Select Committee. If he reads it again in the light of what has been and will be said today he may take a more generous and favourable view of the Commitee's work.

I turn now to one or two other topics and hope that in doing so I shall be responding to the invitation of the Leader of the House to hon. Members to express views about the proposals to which he has given a degree of consent. I shall not touch upon the issues of Parliamentary Questions because there was a degree of criticism in that direction by one or two other hon. Members.

The vital thing is that the Select Committee recommended that there should be a full slot—not an after-thought slot—for the Minister who is responsible for Common Market affairs. I felt a certain amount of disquiet when the Leader of the House dealt with that aspect of the report. He laid some emphasis on the fact that it would mean additional Questions for the Foreign and Commonwealth Office. I do not think that is the way I regarded it in the Select Committee's deliberations. It will be interesting to hear what other hon. Members thought. My impression was clearly that we were saying that a slot should be available for general Common Market questions, and that these should not be answered under the overpowering aegis of the Foreign and Commonwealth Office because most Questions might not be of a Foreign and Commonwealth type. What we are anxious for was a slot in its own right for Questions of that type.

As a corollary, I should raise the question of the title of the Minister who is responsible for European Community affairs. He is, of course, the Chancellor of the Duchy of Lancaster. As someone who lived part of his life in Lancashire, I look with favour on that Duchy, but it would be wrong to suggest that that is an appropriate title for all time for a Minister who has to answer to this House for European activities. It is anomalous that the Department of Foreign and Commonwealth Affairs should be dealing with Community matters, because the Community is a special species. It is not exactly a foreign country in terms of the Community Treaty, and it is not a Commonwealth country, so, strictly speaking, the Department of Foreign and Commonwealth Affairs does not describe the new functions of the Chancellor of the Duchy.

I make a minor plea for a change, or addition, to the Minister's title. There is no reason why he should cease to be the Chancellor of the Duchy of Lancaster, but let us recognise his important function by making a change. The important plea which I press on the Leader of the House is that we want a specific full slot for Common Market Questions in general.