Extended Meaning of "the Treaties" and "the Community Treaties"

Orders of the Day — European Communities (Amendment) Bill – in the House of Commons at 7:45 pm on 16th June 1986.

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Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East 7:45 pm, 16th June 1986

I beg to move amendment No. 1, in page 1, line 13, after `Communities)', insert 'but not Article 4 of Chapter I thereof'.

The Second Deputy Chairman:

With this it will be convenient to take the following: Amendment No. 4, in page 1, line 13, after `Communities)', insert 'but not Article 12 thereof'.

Amendment No. 38, in clause 2, page 2, line 7, leave out 'any' and insert 'the'.

Clause 2 stand part.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I am grateful to you, Sir Paul, for selecting the amendment. When hon. Members read it and what is obviously a vital Bill, they will wonder why they are bothering to discuss the amendment at all. The amendment addresses itself only to whether a new proposal in the Single European Act to set up some new courts in addition to the European Court of Justice should be incorporated in the European Communities Act 1972. It must be abundantly obvious to those who have read the amendment and the Bill that whether or not we incorporate such an amendment in British law will not make much difference. If something incorporated in European law is not incorporated in British law, it can still be upheld in the British courts as though it were incorporated in British law. It is sad that what will happen to this amendment will happen to all the other amendments.

We cannot amend the treaty, which has been signed on our behalf. It is open to us to reject it, and if we took that course we should have to wait and see what happened. I understand that, even if the House of Commons voted against the treaty, it would still be relevant and legally binding. That makes many of us wonder whether we have any rights whatsoever to scrutinise, debate and examine in detail any aspects of the important constitutional matter that is before us. That is disturbing.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

My hon. Friend is an expert on such matters. Surely he is aware that the institution of the treaty depends on ratification by all sovereign Parliaments in the Community.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I accept that that is the pivot of ratification. I think that my hon. Friend, who is also knowledgeable on such matters, has established that laws which have been pressed by the Community in accordance with various provisions are implemented in national states irrespective of members' views. The point I am trying to make is that there is no way we can seek to amend the Act. There is no way we can take out one part and insert another. If the amendment secures nothing else, it will get across to hon. Members the simple fact that on this vital and important issue our powers of scrutiny and of amendment are virtually non-existent.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

Perhaps we can get straight a point I raised earlier on a point of order. Article 33 of the Single European Act treaty — I always call it that because it might get confused with a British Act of Parliament—states: 1. This Act will be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. As I understand it, because of the peculiarly unwritten constitution of this country and the royal prerogative which the Minister of State signed — I do not know whether it was proper for her to do so as she is not a Privy Councillor—all the Committee is doing now is ratifying the Bill holus-bolus with amendment. The Government have said that the Bill, when it becomes law, will ratify the treaty. The hon. Gentleman is quite right in saying that we cannot amend the Act.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I am trying to put across to hon. Members —I hope that they and the public appreciate it—that we can amend Acts on water charges, taxation, the rights of mothers to allowances, nitrates and water supplies, and so on. Our constituents can write to us and suggest changes; we can have meetings with Ministers; and we can put forward ideas and get things changed. Otherwise, our duty as Members of Parliament would be quite irrelevant. We would be wasting our time. We are dealing with a major Act which enormously changes Britain's rights and the rights of the British people, but there is no way in which we can amend one part or clause of it. We cannot take out a comma. There is nothing we can do, except reject it at the end of the day. I hope that people will appreciate, when we consider Common Market legislation and the form of such treaties, that Members of Parliament can do nothing, apart from saying no to the whole package.

It is appalling that we did not take part in discussions on what should be included in the treaty and what powers Britain should surrender to the Common Market. We have no power at all. If the Committee stage achieves anything, it will get across to the British people the simple fact that on such matters of detail Members of Parliament have no powers whatsoever.

Photo of Bill Cash Bill Cash , Stafford

Does my hon. Friend agree that there is a great responsibility on the media in this country to take note that this is a game not of draughts, but of chess. It may be a glazed-eye subject for some, but it is a matter of the greatest possible importance to our economic and industrial future. It would be helpful if they took it seriously and commented on it.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I agree with my hon. Friend. There are signs that the British people are beginning to wake up to it. We have seen correspondence in The Times on what most newspapers regard as a dead subject. That comment has been helpful. Views have been expressed. People have said to me and to others, "Is that really true?". My hon. Friend had a superb article published in The Times this morning. It is quite clear that people are just beginning to wake up to the realities of the position.

Many other issues must be discussed. Sadly, all we can decide is whether the reference to a new European court should be put in British law. Obviously, it does not matter all that much. However, because of the kindness of the Chairman's selection and the way in which the short title has been drafted, we have the opportunity to ask the Government certain questions about the Bill. We have the right to make an amendment which would have strange consequences for the treaty. I hope that we can get across the basic point that my hon. Friend has rightly pressed. There is no doubt that the amendment will make people realise that there is a need to change the way in which important decisions are taken.

Some people say, "It does not matter very much. We are moving, step by step, towards the great European federation. It is going to happen anyway, and there is nothing much we can do about it." The British people are entitled to know where they are going and what is involved. I doubt whether Mr. Average in Britain knows what the Bill will do for him, for his rights and for the rights of his Member of Parliament to look after his interests.

The Bill proposes a new and additional European court of justice. We already have a court. The European Court of Justice was originally designed to interpret the treaty of Rome. Most people felt that that would be a basic and limited task. However, like all outside courts, once the court was set up its powers were extended enormously by its own decisions. Because of the volume of work, additional courts have been set up to deal with points of law and matters of first instance which are explained in the Single European Act.

One of the reasons for extending and creating a new court is to deal with additional work. The Act itself will impose a great deal of additional work on the court. [Interruption.] The Minister is shaking her head. Perhaps she means that the answer is no. She will save a great deal of time if she answers the question. A clause in the Single European Act places an obligation on member states to harmonise VAT, excise duties, and so on. In other words, we must harmonise, for the purposes of the completion of the Market, our rates of VAT and excise duty.

Photo of Mr Robin Maxwell-Hyslop Mr Robin Maxwell-Hyslop , Tiverton

Is it not a matter of harmonising not only rates but applicability?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I was astonished, when I read a written answer, to ascertain that every Common Market country except Britain levies VAT on gas. Every Common Market country except Britain levies VAT on electricity. Every member state, except two, including Britain, puts VAT on food. If we harmonise on VAT, the people of Britain will have to pay VAT on gas, electricity and food.

When we have raised the question with the Government they have said, "Do not bother about that, because that is one of the few areas where we still have unanimity and limited power of veto." [Interruption.] The Minister is moving her head up and down. I think she means that the answer to that question is yes. It will save a great deal of time if the Minister answers whether, once the measure goes into the Single European Act and becomes part of the treaty, it is likely that the Commission, if it felt that our interpretation of harmonisation was not in accordance with the terms of the Single European Act, will initiate proceedings in the European Court and say, "Britain is not harmonising as we think it should in terms of the Single European Act". Is that possible?

The Minister has nodded twice. I shall give her the opportunity to say yes or no. Earlier I asked whether the court would be faced with additional work. Will the court be able to consider an application from the Commission that Britain is not harmonising? The Minister will save a great deal of time if she stands up and says, "No, it could not." I do not see any response from the Minister. She is not nodding her head sideways or up and down. She is looking straight ahead.

Therefore, I must consider that there is some doubt about the issue. My reading of it is absolutely clear. When the Bill becomes law, an enormous additional burden will be placed on the European Court, because it will have to consider applications to the Commission about whether member states are implementing various provisions. The harmonisation of VAT is only one.

8 pm

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

No doubt my hon. Friend is aware of proposed article 99 under article 17 of the Single European Act. Referring to the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation, it states: The Council shall, acting unanimously". Surely, if my hon. Friend the Minister of State were on the Council and her view was such that the Council was not unanimous, that should be the end of the matter. We should not, therefore, be confronted with a threat by the European Council.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

It was my understanding, on the basis of the Government's assurances, that that was the position. Having taken the best legal advice available to me, my reading of the treaty is that, if there was not unanimity and if Britain were out of step and the Commission took the view that Britain had not harmonised to the extent it thought was justified—even though our Chancellor or Prime Minister believed that we were doing as much as we should—the Commission could take us to the European Court.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

In raising the question of the jurisdiction of the court, the hon. Gentleman has perhaps ensured that the Minister gives us an answer to a question which will certainly arise later. My understanding is that directives passed in 1978, which related not to the Common Market but to the enforced harmonisation of VAT, would circumvent this provision, even if the Ministers were unanimous. If a case were taken to the European Court under those provisions, which were made many years ago, we would be told that we would have to harmonise. That is what the Government have been doing in the past few years on alcohol taxes.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

The hon. Gentleman has raised a slightly different issue. He referred to the obligation of Ministers to act in that way. My argument is that, even if we did not agree and used our veto, the court would have the additional work of interpreting all these articles in the Single European Act. The Commission, or, so far as I understand it, the Leader of the Opposition, could take us to the European Court, saying that we were not truly implementing the various provisions of that legislation.

Photo of Mr Ron Leighton Mr Ron Leighton , Newham North East

Does the hon. Gentleman recall the evidence given to the House of Lords Select Committee by the right hon. and learned Member for Dover (Mr. Rees)? He said that the harmonisation of VAT on take-away food had proved politically sensitive and that the Council of Ministers might not be a good institution to obtain that harmonisation. The right hon. and learned Gentleman suggested that the European Court would provide a far better vehicle. He gave the example of the infraction proceedings taken against the United Kingdom over the alcohol taxes. He explained that that was why Britain had held down the increase in duty on wine and increased the duty on beer. He said that, if there were a general principle in the basic EEC treaty, which there was, and the court were prepared to hand down judgments, as it was. that would be the best engine of progress for the harmonisation of VAT.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

We shall debate harmonisation of VAT later. My point concerns not harmonisation but the fact that the court interprets the treaty of Rome as it is now. Under this measure it will have extra points to interpret, and the Commission will be able to take action to force the United Kingdom to do things that this Parliament might not want it to do.

In some instances, we have the protection of veto on policy decisions, but we do not have that right on matters that are incorporated in the treaty of Rome.

Photo of Bill Cash Bill Cash , Stafford

Does my hon. Friend agree that the law to which he refers is given legal force in the United Kingdom by section 2 of the European Communities Act 1972 and therefore has precedence over prior British law under the tag lex posterior derogat priori, which in effect means "If you do not do what we tell you to do, you will get a kick in the behind"?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Yes. These Common Market debates used to be attended by one or two hon. Members who were obsessed about the subject. I welcome the fact that hon. Members with legal knowledge and experience, such as my hon. Friend the Member for Stafford (Mr. Cash). are waking up to the fact that something damaging and dangerous is happening. That is an encouraging sign. Those who read the splendid evidence by the chairman of GEC to the House of Lords Select Committee will appreciate that people in business and commerce are beginning to say, "Wait a minute. What is happening to our democracy and our rights as a nation?"

Will not this extra court have the job of interpreting additions to the treaty?

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Will my hon. Friend warn the business community that the courts in the EEC take a view about their powers that is very much wider than that taken by British courts? European courts often not only take into account what the mere statute or directive says but give it a gloss saying what they believe the EEC's policy is or should be.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

My hon. Friend is right. People must appreciate that European courts differ totally from British courts. Our courts consider the law as it is. I refer, for example, to the recent case decided by the European Court on a matter relating to British Customs and Excise. Customs and Excise was adamant that it had taken certain powers in stopping the import of various goods. Customs and Excise went to the European Court confident that it could not lose, but it did.

As my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen) said, European courts take a different view from British courts. I shall give details of what was regarded by some as a flippant matter, although not by those who are concerned with the moral character of our nation. Customs and Excise took it upon itself to ban the import from Germany of rubber inflatable dolls used for purposes of sexual gratification. It took the view that it was entitled so to do.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

It took the view that it was entitled to block the import of those rubber inflatable dolls into the United Kingdom. A British company, Cohengate, took Customs and Excise to the European Court of Justice, which deliberated in great detail upon this matter. It decided that Customs and Excise had no such right. These dolls are now being imported.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

Surely there is a provision in the treaty of Rome, from way back in 1957, that a free market in goods does not take away from national Governments the right to prohibit imports on the grounds of "moral welfare" or some such words; I cannot remember the particular provision. Is the hon. Gentleman saying that the court went against the spirit of that provision?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

It did not go against the spirit of the provision. The court said, "Customs and Excise has stopped these goods entering the United Kingdom through the provisions of the Obscene Publications Act. Although we accept that Customs and Excise based its judgment on what applied in the United Kingdom, the British obscene publications law is unclear. It refers merely to goods that are regarded as "offensive". It is not specific. Britain does not have a specific law that bans the manufacture or sale of those goods.

Photo of John Butterfill John Butterfill , Bournemouth West

Were not those articles manufactured and on sale in the United Kingdom? Therefore, the court's ruling was that, until their manufacture or sale were banned in this country, it would be unreasonable to ban their importation.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Indeed, I shall come to that point. I have a letter from the Solicitor-General which explains the matter in detail. I understand that it was nothing to do with manufacture in Britain. The court said that Britain did not have a specific law that prohibited the manufacture of that specified item. It had only the rather loosely worded Obscene Publications Act. The court said, "Unless you have a specific law that prevents the manufacture or sale of these items, it is wrong to prohibit their import."

I do not believe that people are fully aware that the European Court, which was set up to interpret the treaty of Rome—to determine what was right and wrong in that important treaty—is concerning itself with matters such as rubber inflatable dolls. That is only one of a series of examples which I could give in a wide area. The Minister will accept that the courts, like the other courts, have extended their jurisdiction because, as my hon. Friend the Member for Stafford rightly said, they do not take the same view of the law as do the British courts.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

It is also because they refer to the treaty of Rome. The treaty does not give specific instances of what may be done in relation to rubber dolls; it speaks in terms of general principles. I could say for the sake of argument that the importation of rubber dolls is necessary to enhance free trade in the Community. It is almost impossible to anticipate the nature of any decision because the judges usually refer to wide but conflicting principles. They then take what is essentially a political decision in deciding which of those principles they prefer in the circumstances of a given case.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I have no reason to try to trivialise the discussion. I shall mention one example which my hon. Friend may regard as most significant. Many of us will have received deputations at our surgeries recently—

Photo of Mr Russell Johnston Mr Russell Johnston , Inverness, Nairn and Lochaber

Before the hon. Gentleman leaves that point, may I suggest that it is slightly bizarre that he should criticise the law on the continent or in other parts of Europe as being "different" from British law, when it is generally recognised that Scottish and continental law, being based on Roman law, has great similarities. The hon. Gentleman may have noted that when he represented Glasgow, Cathcart.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I do not wish to become involved in Scottish law and English law. I am trying to develop an important point of principle. I hope that the hon. Gentleman, who is always obsessively putting forward the merits of the Community, will at least accept that this is a valid point — and a point which his constituents in Inverness should be as worried about as my constituents in Southend.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

The hon. Gentleman raises a good point. Allowing the Scottish legal system to continue was a recognition that the two traditions were different and that they could not be satisfactorily mixed. The recognition of the separate tradition of the Scots was necessary. It would be much better if we could honestly recognise differences rather than fiddle and fudge along, as we do at present in relation to the EEC, pretending that their system is the same as ours.

The Second Deputy Chairman:

Order. We must get back to the amendment. The hon. Gentleman is spending much time discussing the merits or demerits of the existing courts. I remind him that this amendment deals with new powers and new courts. I hope that he will come to that.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

On a point of order, Sir Paul. Is it not necessary to discuss the law in the existing courts in the EEC before the House can decide whether it is wise to extend those courts and to extend the jurisdiction of that law?

The Second Deputy Chairman:

I am prepared to allow some discussion on that, but it would not be in order to discuss at length and in detail the merits or demerits of the existing court. Mr. Teddy Taylor.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

I am afraid that my hon. Friend seems to be seeing everything in an unfortunate vein. Everything seems to be against us today. My hon. Friend is rightly concerned with the moral aspects as a father of young children. If he looks at the back of the Single European Act, he will find under the general declaration of articles 13 to 19 of the Single European Act the following statement: Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, the traffic in drugs and illicit trading in works of art and antiques. If Her Majesty's Government were to make it a crime to trade in those commodities, the existing court, and perhaps the amended court, would have to prevent their import into the United Kingdom, because it would be a criminal offence to do so.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I merely want to read out the following paragraph from a letter I received from the Solicitor-General: As to the conduct of the case, the Government have appeared and argued that the Customs authorities were entitled to act as they did. The Customs authorities, in all the three domestic courts which dealt with the case, and the United Kingdom Government before the European Court of Justice, argued strenuously that the import ban was compatible with Community law. Written observations were made to the European Court of Just ice, and the Government were also represented at the oral hearing to reinforce their arguments. Unfortunately the Court of Justice came to the conclusion that the import prohibition is unlawful, although only to the extent I have outlined above. 8.15 pm

That extension of the power of the European Court provides us with two alternatives. We either do as provided in clause 2 and make more courts, or we say, "Hold on a minute. Let us try to find whether, by restricting the number of courts, we may put some restriction on the ever-increasing role of the court in deciding British issues, which should be decided by British courts." Most of us—I am sure you, too, Sir Paul—have received visits during the past few weeks from our constituents representing animal welfare. They are worried about something called the LD50 test; we try new drugs on a controlled group of animals, for example 100 monkeys or 100 rats, and stuff them with the drug until half of them die. Some people consider that to be a very distasteful test and they object to it. They ask hon. Members what we can do. I have seen a written answer from the Minister saying, "If we tried to ban this we would be taken to the European Court. It would be contrary to the Treaty of Rome to do so because it is a European law."

The European Court is extending its jurisdiction, not just into weighty matters of law between nations but into matters which arc decided by domestic Parliaments or by domestic courts.

What will be the powers of the new court of first instance? We are told in the Single European Act that its powers will be related basically to points of law. I wish to ask the Minister about the wording of clause 2 of the European Communities (Amendment) Bill, which puts no limit on the number of new courts. Clause 2(b) states: In sections 3(2) and (3) and 11(1) (which as regards the European Court, provide for judicial notice to be taken of its pronouncements, for proof of its judgments and orders, and for the trial and punishment of persons who in sworn evidence before it make statements which they know to he false or do not believe to be true). Is it the Government's intention to introduce an Act before Parliament which will give to the European Court the power to punish and try persons from the United Kingdom? If so, what is the range of the punishments? If they will he put in prison, to which prison will they go? I see, perhaps wrongly, in clause 2(b) a major extension of the court's jurisdiction, in that, in the court of first instance, it will be possible for persons to be tried and punished not by domestic courts, but by the European Court of Justice.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton

My hon. Friend has made a strong case warning us about the problems of the extension of the powers of the court. I draw to his attention a warning which the Select Committee on Foreign Affairs has highlighted in its third report at paragraphs 12 to 14. It stated that, whether or not there is a change in the powers of the court, the preamble could lead to variations in the implementation of the treaty. That was a response to a specific request made by the Foreign Affairs Select Committee to the Foreign and Commonwealth Office.

Since the preamble makes it clear in paragraph 2 that the work undertaken on the basis of the treaties establishing the European Communities and to transform relations as a whole among their states into a European union is an important element of the Single European Act, there is a strong danger, to which we should be alerted, that provision in the Act may be interpreted by the existing courts without any extension of its power along lines which are contrary to the views which Britain has hitherto expressed. Does my hon. Friend consider that that is a serious danger and would he invite my hon. Friend the Minister to give us some reassurance?

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

We do not want reassurance. We want the truth.

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton

There is no question of the preamble being interpreted by the court in terms of a European union when deciding any of the specific terms which would be contrary to the wishes of Parliament.

Photo of Sir Anthony Meyer Sir Anthony Meyer , Clwyd North West

The hon. Gentleman and his well rehearsed cast of supporting players are making our flesh creep miserably with tales of the horrors that will be perpetrated by the courts. Is the hon. Gentleman maintaining that a complex system such as the European Community can possibly be made to function to the benefit of the United Kingdom without an effective court and that the court of first instance is designed to make that court more effective? He makes our flesh creep with tales of inflatable dolls that will be imported. Were it a question of other countries seeking to prohibit imports of Scotch whisky on the ground that it was damaging to the health of their people I have no doubt that he would be taking a very different view about the necessity for the court to be able to police the operation of the treaty.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

If I was to get involved in discussions of that sort I would be here all night. It is my experience, which may be the result of prejudice, that we do not seem to do well when there are disputes. I can think of a local firm which is virtually being put out of business because of the way in which the inner German trade agreement was working. We have been to the Commission and the court time and again but it never seems to work to our advantage. That is another point.

Whether the court is fair or not is a matter of political judgment. My hon. Friend the Member for Clwyd, North-West (Sir A. Meyer) supports his view with great sincerity, but I am sure that he will appreciate that surely the people of Britain are entitled to know what is happening and that there is a huge increase in the kind of decisions—

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Before I give way, will my hon. Friend confirm that he is not one of my supporting acts?

Photo of John Butterfill John Butterfill , Bournemouth West

I am happy to confirm that I am not one of his supporting acts. I should like to correct what I think is a misunderstanding on his part with regard to the extension of the powers of the court for trial and punishment. I refer my hon. Friend to clause 2(b). It seems that the European Court already has the power for the trial and punishment of persons who commit perjury, which is what this amounts to. The clause does nothing more than extend that existing power to any new court which may be attached to the European Court. Therefore, it is not a new power but merely an extension of an existing power.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

If my hon. Friend reads what I have said, he will see that I made exactly that point. The power is there in the treaty of Rome, but it is being extended to the court of first instance which we are told is dealing with issues subject to appeal on points of law. I am simply asking the Minister whether he can establish any grounds in which we are discussing points of law where there were justifications for the European Court to try to imprison any constituent of mine.

Photo of Bill Cash Bill Cash , Stafford

I may offer a slight ray of hope to my hon. Friend in relation to the interpretation of matters before the European Court. Contrary to the practice in the British courts where one may not seek in aid and construction of statutes the proceedings of this House involved, that rule of interpretation is not so strictly applied when it comes to the European courts. The question of whether the Minister may or may not make a statement with regard to the important matters which my hon. Friend has raised may, in due course, turn out to be more relevant than some hon. Members previously thought.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I am grateful to my hon. Friend. I hope that he is right.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

My hon. Friend the Member for Stafford (Mr. Cash) has raised a new and serious point. My hon. Friend knows a lot about the details of European law. He knew enough to earn his living from it. He made the good point that in construing European legislation the judges look at what is said by Ministers or by persons in a political position. The European courts constantly take what are not really legal decisions but political decisions. Therefore, those of us who are sceptical of some of the wider principles set out in the treaty ought to realise that those wider principles are looked at as aids to the construing of legislation by European judges. It is essentially a political court. It is not a court in the narrow sense as we have come to understand our courts in this country. Therefore, although my hon. Friend the Member for Southend, East (Mr. Taylor) glibly asks the Minister for reassurance, there can be no reassurance. It is essentially an alien system of law.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

My hon. and learned Friend the Member for Burton (Mr. Lawrence) made an important point, and I can assure my hon. Friend the Member for Clwyd, North-West, who has left the Chamber, that he is not one of my supporting team. He referred to one of the possible extensions which was not, as far as I can see, referred to in the report of the Select Committee on Foreign Affairs. I do not know if my hon. and learned Friend has seen it but the wording used is like most international agreements. The Single European Act is prefaced by a preamble. According to the Foreign Office—who knows more about it than the Foreign Office?—the preamble is 'an integral part' of the Treaty 'but neither confers rights or creates obligations' … It nonetheless provides the 'context' the interpretation of the operative text, and thus could lead to variation in the implementation of the Treaty. In other words, even the preamble which refers to a commitment to European union could affect decisions before the new court and before the old court.

My hon. and learned Friend the Member for Burton is not one of my supporting cast and he has been a trusted and valuable supporter of the EEC throughout its existence. He is pointing out a real danger. First, we have a court which is extending its powers anyway, and we have plenty of examples of that. Secondly, it is extending its powers on European union through the preamble and, thirdly, it is extending its powers because it will have the task of implementing or adjudicating on the way in which member states are implementing the new Single Act, even if there is majority voting and unanimity. Therefore, I hope that the Minister will give us some guidance. Is the reason for the new court that we cannot cope because of those three specific items?

Photo of Mr Ivan Lawrence Mr Ivan Lawrence , Burton

Before my hon. Friend goes on, I should like to confirm the correctness of what he said. I helped to draft the passage that he read out.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Apart from the hon. Member for Inverness, Nairn and Lochaber (Sir R. Johnston), who has left the Chamber, there are few of what we might call obsessive Europeans in the House. I hope that those who are in that category, and there is only one present now, would take the view that there are people who have always supported the EEC and who want to see it be successful but who have been worried sick about the extent to which British sovereignty is being eroded by the existing court and by the new court which is being created.

Photo of John Butterfill John Butterfill , Bournemouth West

On this occasion I hope to be helpful to my hon. Friend. I made the very point that he is now making with regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms which is contained in the preamble. It is sad that it should be contained in the preamble and I hope that the Government will take an early opportunity to deratify that convention because it seems that most of the political decisions which come out of European courts come not from the European Court which is attached to the treaty but from the European Court of Human Rights.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I was certainly not referring to the European Court of Human Rights. It would not be in order for me to do that during the debate. If my hon. Friend is really concerned about parliamentary sovereignty he knows, as I do, that this was ratified for a further five years by a written answer in the House. The European Court of Human Rights in Strasbourg has nothing to do with what we are discussing. It has nothing to do with the Bill and nothing to do with the Common Market. We agreed to join that once again for a period of five years by means of a written answer in the House.

What is disturbing me, and what I hope will disturb my hon. Friend the Member for Bournemouth, West (Mr. Butterfill). is the fact that on issues of the sovereignty of Parliament and our people we have no effective control in the House of Commons. It is only now, I am glad to say, that a considerable number of hon. Members are starting to ask why we cannot have some say in the important decision making. I would be glad to join my hon. Friend and say that we should have some discussion about the Court of Human Rights. However, it is too late. We cannot do anything for another five years. I do not know whether my hon. Friend or I will survive the next election. Let us forget about the European Court of Human Rights in Strasbourg for five years. There is nothing we can do about it. Even if the House voted 629 votes to one to tear it to pieces it will still apply for five years. That decision was taken by written answer in the House. If that does not get us worried, what should?

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North 8:30 pm, 16th June 1986

My hon. Friend said that the decision that was conveyed to the House in a written answer about the European Court of Human Rights binds us for five years. I should like to draw his attention to the preamble to the Single European Act. Surely that binds us for ever.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

How right my hon. Friend is. Once it is ratified, the Single European Act is there for ever. I take the view that this is a dangerous and bad piece of legislation. The Minister, who has not been entirely helpful in this regard, may take the view that it is not a bad piece of legislation. She may say that we are looking for troubles where they do not exist. The fact is that none of us knows. The European Court will decide what the Single European Act does. It will not be the Government, me or other Members of Parliament. That will be decided by the European Court, which will interpret the new treaty.

Therefore, we must be careful and cautious before we give the court additional scope to do things and decide things. If we did not agree to the creation of the additional court, that would be a lesson to the European Court of Justice that we are getting just a bit worried about the extent to which it is extending its jurisdiction.

I should like to ask a few detailed questions in relation to the amendment. The first is: how many new staff will be employed by the court, and what will be the cost? That may be regarded as a silly and niggling question, but I do not regard it as such. The Commission is another great arm of the Common Market. Only today I asked how many people it employed in the year before the Conservatives came to power and how many people are now employed, bearing in mind the fact that we believe in reducing the number of civil servants. I received the astonishing information that the total number of persons employed by the Commission was 7,983 at that time, and is now 10,881—a substantial increase in the number of persons employed.

Photo of Mrs Elaine Kellett Mrs Elaine Kellett , Lancaster

My hon. Friend is omitting to notice that there are now more members of the Community—Spain and Portugal. They have to have their interpreters and other staff.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

My hon. Friend will appreciate that the figures that I was given were in 1 January 1986, which was round about the time when Spain and Portugal were joining the Community. I would not have thought that all the staff were in place on the day when the new members joined.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

In his answer from the Minister, did the hon. Gentleman get any information about the number of people currently employed in the European Court of Justice, and the number of people expected to be employed in a subsidiary court?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

That is the point on which I was hoping that the Minister would give us an answer. How many people are employed by the European Court of Justice? How many will be employed in the new courts? There will be not just one court. There will be one for the European Coal and Steel Community and one for the EEC. There will be at least two new courts. We want to know how many people will be employed and what the cost will be. I hope that the hon. Gentleman appreciates that it is not just one extra court. We have articles 4 and 11—

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

With respect, the hon. Gentleman has got it wrong. At least, I hope that he has. I should be appalled if he were right. One looks to the Minister for an answer. Surely there are three separate provisions in the Single European Act, altering each of the three basic treaties, because there are three basic treaties, each of which is supervised by the court. Therefore, the extra court would be merely one extra court for the European Court of Justice as a whole. There should not be three extra courts.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

That was my understanding when I first heard about it. I had heard the Minister talking about one extra court.

I see that the Bill does not refer to "an" extra court. hope that the hon. Gentleman will look at it carefully. It says: decision of the European Court or any court attached thereto". There are other references to "any court attached thereto". I should have thought that if there were one extra court, the Bill would say "the" court. In fact, one of my amendments says that.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

I seriously think that the hon. Gentleman got it wrong. Clause 2 mentions "the European Court". As I understand it, there is only one European Court, which regulates the affairs of the Communities under the provisions of the three basic treaties. All that we are being asked to approve — even that would be beyond what some of us want—is one extra court for the one existing European Court.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I should like to think that that was so. If that was the answer, I should be satisfied. The hon. Gentleman has been bold enough to say that he is sure that I am wrong, but I hope that he will look at the Bill carefully. The wording is, "any court attached thereto". If we were to have one extra court, the Bill would have said "the court attached thereto", not "any court".

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

It might be better to clarify this point straight away. As I understand it, my hon. Friend the Member for Walthamstow (Mr. Deakins) is right. There is a European Court of the European Community, covering the three treaties. It sits in several courts, in that it hears several cases at once, rather like our High Court in the Strand. The provisions set up a lower tier of the European Court, which may be in the plural. It may be an undefined number. That is what I understand the set up to be, which is much more serious than that even the hon. Member for Southend, East (Mr. Taylor) envisaged.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Indeed. I hope that I did not appear to be discourteous to the hon. Member for Walthamstow (Mr. Deakins), but I believe that he should look at the Bill more carefully. He is one of the most conscientious Members in looking into such matters. If he was right, the Bill would have said, "the European Court or the court attached thereto". But I understand that there will be several subsidiary courts. I may be wrong, but we have no information on the real position. I should like the Minister to tell me how many more there will be. Does the Council of Ministers have any control?

We know that the Council of Ministers is taking upon itself in a later article the power to amend the rules of the court. Is there any control of the staff costs and the numbers? Can the Minister give me an idea of what she would regard as a reasonable extra number of people, or a reasonable extra cost?

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

Maybe I am seeing bogies where they do not exist. My hon. Friend has studied the matter more deeply than I have, but, as he says, clause 2 refers to "any court attached thereto". It may well be that the Bill is written in such a way at the moment so that it anticipates what might happen several years hence. With the Bill written as it is, is it not possible that at some stage a future United Kingdom Government could agree with its European partners that the British High Court could be a court subsidiary to the European Court, and part of that court?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

That may be done, but it is not relevant to the amendment. I am anxious to continue with my detailed questions.

My second detailed question is pretty fundamental. I hope that my hon. Friend the Minister and her advisers will take note of it so that I can get a clear, specific reply.

Photo of John Butterfill John Butterfill , Bournemouth West

Perhaps I can help my hon. Friend. Article 32d(2) says: The Council, following the procedure laid down in paragraph 1, shall determine the composition of that court and adopt the necessary adjustments and additional provisions to the Statute of the Court of Justice. Does that not answer the questions that my hon. Friend was asking?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

It does not. I am concerned about the control over the number of people. My hon. Friend was referring to article 4. Let him turn over the page and look at article 11. There he will see another reference to a court and the EEC treaty. It is true that, under article 12, the Council has the power to fix the rules of the court—the rules of operation—but not, unfortunately, the numbers of people employed or the global cost. I should like to know who is controlling the cost of that operation. Is somebody somewhere saying, "We think a reasonable cost should be X, Y, or Z, and a reasonable number of staff is this."? Does the Court of Auditors have jurisdiction—I understand that it does not—over whether too many people are employed in the new court? I hope that the Minister will give me and my hon. Friend the answer. Who controls the numbers and the costs? Does somebody do it at some stage?

The next important issue that I would like my hon. Friend the Minister to clarify is whether the new court. which will deal with points of law and Community institutions, will have jurisdiction to implement judgments in so far as they apply to the various inherent parts of the Community. By those inherent parts I refer specifically to the European Assembly which we will have to call a European Parliament.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

There is no way that I will call it that.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

The hon. Member for Walthamstow may say that he will not call it a Parliament, but I can assure him that it will legally be the European Parliament if the Bill is enacted and the Parliament ratified.

The Minister will be aware that one of the most interesting cases to come before the European Court of Justice recently was a decision by the court that the European Assembly or Parliament had paid out from British taxpayers' money a sum of £27,547,000 to political parties in Europe. That money was paid out illegally, without justification and was used for wrongful purposes. That is not my view; that was the decision of the European Court. The court said that it was a fiddle that £27 million of our taxpayers' money was filched by the so-called European Assembly or Parliament and handed out to political parties.

Bearing in mind the judgment that I have described, I expected something to happen. I have been peppering the Order Paper with questions to Ministers asking what has happened to the money. When will that money be paid back? The answer that I receive is that it is a matter for the European Parliament. The Minister may take that view, but who does the money belong to? I have plenty of constituents who find it difficult to pay their taxes and to get the money that they need for essential services. Like the constituencies of many other hon. Members, my constituency contains hospitals in which wards have been closed. Nothing sickens us more than to see money wasted. However, this money was not wasted; it was fraudulently used. That is the view of the European Court of Justice.

Why should we bother about the decisions of the European Court of Justice affecting us and jump to implement its decisions when nothing has happened after the court's ruling on the fraudulent use of our funds? I have asked the Minister what will happen to the money and if it will be returned to us. Nothing has happened, although we have been told that a committee of the so-called European Parliament is considering the matter.

Photo of Bill Cash Bill Cash , Stafford

As I tried to explain in my article in today's edition of The Times, to which my hon. Friend the Member for Southend, East (Mr. Taylor) referred, the European Parliament does not have an executive to which it can address questions which, in its turn, is accountable to an electorate. Therefore, when matters go before the European Parliament, we must not be misled into imagining that merely because a problem arises within the framework of the European Parliament—whether or not the Bill is enacted—the questions can be answered by Ministers who must answer them in a democratic assembly.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

My hon. Friend has made a fair point. He has said that there is not much that we can do about the matter under the present set-up. However, we are considering a new set-up. The Government have said in many publications that the measure will improve the workings of the European Parliament, and presumably that means stopping the abuse of cash for fraudulent purposes.

Will the new court, in the first instance, have the power to take action over the fraudulent use of money by the European Parliament in relation to the use of 40 million ecu or the £27,547,000 at current exchange rates paid to European political parties? The new court will do many things to interfere with the decision making of individuals and Governments, but will it stop the scandal that I have referred to and, if not, why not?

My next question relates to article 12, which arises under the amendment. That gives the Council the power to change rules of jurisdiction. It also gives the Council of Ministers the power to amend the statute. That is a most unusual power to grant to the Council of Ministers. I may be told that I should not worry about this as it is simply a common term and rather like a regulation going through the House of Commons. However, what is covered by "rules" and "the statute"? Is it possible that article 4(12) would give the Council of Ministers the power to extend the jurisdiction of the court? We have already heard from the Foreign Office representatives appearing before the Select Committee that the preamble— which does not include any powers — will influence the European Court's decisions by making it have more regard to the concepts of European union. If we approve the measure, will we give the Council of Ministers the power to amend the rules in such a way as to extend the jurisdiction of the court? We must remember that we do not have any power over its actions at present. That is a fundamental point and we are entitled to a clear answer.

Photo of Sir Anthony Meyer Sir Anthony Meyer , Clwyd North West

As I understand it, surely the Council must act unanimously. Does that not specifically enshrine a British veto on any application of the clause in the manner that my hon. Friend suggested?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East 8:45 pm, 16th June 1986

Indeed, it may. A point of detail is involved and I hope that my hon. Friend was present when I raised it earlier. Although we hear much about veto, I hope that my hon. Friend will appreciate that the Single European Act will grant the court and not the Council the power to take decisions. There is a problem over the power of veto to protect us on the question of harmonising VAT. However, once the measure is passed, the court will make the decision.

My hon. Friend knows more than most hon. Members about the working of the Community. My hon. Friend will know that the Council of Ministers often works by horse trading. Often Ministers say that they will agree in one council if Ministers will agree on another matter in another council. That is natural with the constitution of the Community. It is inevitable that if we are desperately anxious to get something through the Council of Transport Ministers and the French are stopping us, but the French are anxious to get something through the Council of Health Ministers, we can — not openly — reach an arrangement. To that extent, the power of veto and a change in the rules does not provide the protection that I require. If there is to be a change in the rules, will that extend the Government's jurisdiction or powers?

Photo of Bill Cash Bill Cash , Stafford

This is an extremely important question. The problem sometimes arises in the context of our domestic legislation in the United Kingdom. Orders are sometimes made under what is known as the Henry VIII system whereby we are requested to agree to legislation which, by order, will enable us or a Minister to amend the provisions of an Act of Parliament. It is well known that that provision is deeply resisted by the House, because it is using a form of procedure that is appropriate to subordinate legislation to amend a substantive Act of Parliament.

I am worried about whether the provision that we are discussing does the same by giving the power to the Council. I should like to emphasise that, because the power is permissive and is conferred on the Council acting unanimously. That is a further restraint, and I concede that. None the less, that is a significant power that is granted to the Council to enable the provisions of title 3 of the statute to be changed when the proceedings before the House are being enacted in the present form because at present it would not be open to any order-making power to confer provisions in the same way.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I am glad that my hon. Friend has brought his long legal experience to bear on this matter. He has confirmed my worry. The Council will be granted the power to amend title 3 of the statute. That is the power to change legislation and the Council will make that decision.

To supplement the point made by my hon. Friend the Member for Stafford, I should like to know what the rule changing involves. It can mean anything at all under article 12 because the rules under which the courts operate can be amended by the Council in any way that it thinks fit. Do we have any protection against such amendments changing the actual jurisdiction of the court?

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

My hon. Friend the Member for Clwyd, North-West (Sir A. Meyer) suggested that there was nothing to worry about because there had to be unanimity in the Council, so we could veto any change in the powers of the court. Mention has been made of barter—"You agree this for us and we will agree that for you". Before this measure ever saw the light of day our Prime Minister said that it was unnecessary, as indeed it was. This massive constitutional change was agreed to by our Government and Prime Minister as a basis for barter. The rebate due to us was being obstructed and we agreed to this because we wanted to get our money back. Yet this is one of the most fundamental pieces of legislation to come before the House. As a result of that barter we have agreed to something in which we do not believe and which we do not regard as being of any use or interest to the United Kingdom.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

To follow that intervention would raise much wider issues than are covered by the amendment, but my hon. Friend is right in one respect. It is not this clause that will determine the power of the court. My fear is that the court will be able to determine its own jurisdiction and powers. We have already received a warning from the Foreign Office, of all places, about the danger of encroachment on British sovereignty by the EEC. The Foreign Office warned the Select Committee that even the mealy-mouthed preamble about European union would affect the context in which the European Court will make its decisions. If the Foreign Office is getting worried about the powers of the Common Market, it is time for all of us to put up the panic signals.

Mr. J. Enoch Powell:

Before the hon. Gentleman leaves article 3, perhaps he will tell us whether he has succeeded in finding title 3 and, if so, where he found it.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Title 3 is in article 188 at the back of the EEC treaty. The Library found it for me. Right at the back there is a description of the powers of the European Court.

My fourth question to the Government is equally fundamental. Will any of the rule changes set out in article 12 be subject to the approval of the Parliaments of member states, or does the Council of Ministers have the right to act without reference to the United Kingdom Parliament? That is extremely important. The Government may say, "What does it matter about Parliament? We will get agreement to this, come what may." But there is a great deal to be said for bringing things before the House. At least it is a way of telling people what is happening. Those of us who have been here for a long tme may wonder whether our debates achieve very much, but at least they bring the issues before the people. If a fundamental rule change for the operation of the European Court of Justice is made at a meeting of the Council of Ministers in Brussels very few people in Britain will know anything about it, but if such changes have to be debated by the House of Commons and approved or rejected those who are expert in these matters will ensure that people know exactly what is going on. We may not change Government policy on that occasion, but the matter will be borne in mind for the future.

We were all here when the Government rushed through the big increase in VAT own resources. Some of the public were outraged at the huge increase in Common Market spending, but we did not manage to stop it. Nevertheless, as a result of the issues raised in that debate it would be very difficult, even with the help of the Foreign Office and the Treasury, to put through a further increase in VAT because people now have some idea what is going on. That is why it is so important that if there is to be a change in the rules of operation of the European Court under article 12 the approval of Parliament should be sought. Then at least we shall know what is going on and can bear it in mind if a further rule change comes up.

How often can rule changes be made? Clause 2 gives the impression that there is to be just one change, but my reading of the measure suggests that the Council of Ministers can make regular changes. Regular changes cannot be made without changing the powers and scope of the new court and, indeed, the existing court.

I do not know whether the Minister can answer my final question, but I hope that somebody can. Have the Government sought the views of the United Kingdom courts about the impact of the increased power of the European Court? The last thing that we want is for our courts to become involved in politics or controversy, but the correspondence in the press from learned barristers and QCs shows that the legal set-up in this country is getting worried about the increase in power and scope of the European Court. That worry will grow if the clause is passed allowing the setting up of additional courts in the European Court of Justice. I hope that someone somewhere is keeping in some kind of contact with the British courts and what they think. I do not mean what they think about their own rights and responsibilities. People are always anxious to hold on to their little bit of power and responsibility.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

My hon. Friend talks of asking what our courts think, but they are now subordinate. They have no more right to say what they think than the corporal who is ordered to do something by his commanding officer.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

That is certainly true as things now stand. Our courts are clearly subject to the European Court of Justice, but only within the interpretation of the treaty of Rome. Another treaty is now being proposed under which our courts will be subordinate to the European Court. Surely it would be interesting to know what our courts think, not just in terms of their wishing to keep their little bit of power and authority but in terms of the rights of British people. Happily, I have never appeared before a court, but I have gained the impression that our courts are as much concerned with the rights of British people as with implementing justice, chasing crime, and so on. They are the guardians of the rights and liberties of the people. Our judges and others must have some views about this. I hope that the Government are consulting them because in this minor part of this very important new Bill I see a fundamental change, creating a whole new treaty and giving a new court power to implement that treaty in any way that it thinks fit.

I believe that this represents a huge diminution in the rights and obligations of the British people and in the right of Parliament and the British courts to protect them. It is wrong to suggest that things should never change, because things must change, but Britain has been marked by having a Parliament that can protect the people. We have a Parliament that has fought for justice and courts which have defended the freedom and liberties of our people. That was certainly eroded by the implementation of the treaty of Rome and the extension of the powers of the European Court of Justice. Before we take another major step forward towards a new additional treaty of Rome and new additional courts to implement points of law, we should stop and think whether it will make life better in any way and whether it will safeguard our freedom and liberty. To have these decisions made by foreign courts composed mainly of people whose experience of the law is in a wholly different tradition will simply take decision making further from the British people. Some people may say better and some may say worse, but their tradition is certainly not the same as ours. We should think extremely carefully.

I hope that hon. Members will probe the Government so that we can at least tell the British people what is happening. We may not stop it this time, but let us hope that by telling people what is going on and what has happened to their liberties and freedoms we shall at least stop a further grave mistake, such as the one which the Government are making tonight.

Mr. J. Enoch Powell:

It was an important constitutional event when you decided to call amendment No. 1, Sir Paul. It is no accident that the debate which the calling of that amendment initiated has exploded into a major constitutional discussion.

The amendment tabled by the hon. Member for Southend, East (Mr. Taylor) would reduce by one the provisions of the Single European Act, which by this Bill are included in the definition of the treaties and the Community treaties in the European Communities Act 1972. I may be mistaken in my opinion that the Government have not introduced the Bill as a mere act of supererogation. It is not a superfluous act on their part to provide the House with something with which to amuse itself during the summer months. They would not have introduced the Bill if they had not considered that it was necessary to enable them to make the treaty which they have made to the implementation of the duties which they had undertaken in signing that treaty. We must presume that they have included in the Bill all those provisions of the Single European Act that are necessary to validate in effect in practice their adherence to that Act as a Government.

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In international law and relations the Government have hound themselves to the observance of that instrument, but in order to be able to do so, consistently with the law of the United Kingdom — just as in 1972 in order to accede to the European Community they had to define those treaties and make provision through section 2 of the 1972 Act — they must now come before Parliament and ask it to include within that definition of the 1972 Act certain provisions of the Single European Act.

If the amendment is carried. it will remove one of those certain provisions which will no longer be understood when the terms "the treaties" and "the Community treaties" are construed in future. This is no laughing matter. Indeed, we are engaged in something similar to what has been occupying the United States Congress in discussing the extradition treaty which their Government had entered into but which their Government must ask the United Kingdom to alter by agreement, presumably, as Congress has declined to legislate on the domestic law of the United States in order to give effect to the agreement which had been reached between the two sovereign Governments.

If we decide to accept the amendment we shall remove one of those certain provisions, and the Government will need to notify the European Community that to this extent they will he unable to comply with the provisions of the Single European Act. Therefore, if hon. Members think that this matter can be allowed to go without a Division by any person who is serious about the constitutional powers of this House, I ask them to think again. When we consider this amendment we have power in our hands over the Government to limit the exercise of the treaty-making prerogative of the Crown.

With respect to the hon. Gentleman, I do not think that we are engaged in the business of ratification, although I am open to correction. Ratification is a different process altogether whereby the Government are assured of the general—

Photo of Robert Jackson Robert Jackson , Wantage

The treaty is a multilateral organisation, unlike the bilateral treaty between the United States and Britain that the right hon. Gentleman has described. Will he speculate about the practical consequences if we in the House were to vote in the sense that he suggests and every other member stale were to decide to proceed to establish the new arrangement as proposed?

Mr. Powell:

It will be interesting if the hon. Gentleman intervenes later to push that speculation further. I am concerned with the consequences upon the adherence of the United Kingdom to the Single European Act. The Government's view—this stands upon the face of the Bill—is that for the United Kingdom validity to assent to the Single European Act it is necessary for this and other provisions of that Act to be written into the law of the United Kingdom by means of this Bill.

It is an interesting speculation exactly how the Government would get themselves out of the scrape that would result, but it is a real scrape and it is no use the House saying that it has no control over the domestic consequences of the external commitments into which the Government enter.

I know that we are only permitted to allude by way of imperfect analogy to the European Court of Human Rights and the European Convention on Human Rights. Nevertheless, the House has, in effect, cocked a snook at the Convention on Human Rights, the Commission and the court by the decisions which it has come to in the face of Government proposals in the matter of corporal punishment. That is a bagatelle compared with what is happening here. We are at the heart of the matter. It would be valuable if the Minister, when she replies to the debate, could explain exactly what effects upon citizens subject to the law of the United Kingdom this provision will have if the provision is, as the Bill proposes, included in the definition in the 1972 Act.

What we are clearly doing is deciding on the application of a part of the Single European Act within this realm. Before the House decides whether to assent to that, it should be told clearly how those who in the United Kingdom are subject to the United Kingdom law will be affected by the provision which the amendment moved by the hon. Member for Southend, East will eliminate. I leave that there having put on record the fact that it is a solemn decision which we are about to take. If, when the question is put, there are tellers available, it will be no use hon. Members who do not go into the Lobby saying that they have no power to override the treaty-making prerogative of the Crown. They have, in so far as that treaty-making prerogative is exercised with a view to altering the rights of the citizen here inside the United Kingdom.

I turn from that to the kind of legislation that we are achieving if we allow the provision to be included in those definitions. That brings me to article 4—articles 4 and 12 cohere to a certain extent, but I refer to article 4 of the Single European Act to which we are assenting.

We are not assenting to article 4 in the way in which we assent to provisions of an Act of Parliament. Although, as I have already demonstrated, article 4 will have its consequences for the subjects of the Queen inside the realm, we are not altering the law; we are changing a provision in a treaty. But the effect of it is equivalent to the making of new law.

Let us see how we are going about our business. It is a very grim business that you will find, Mr. Armstrong, when one is engaged in legislation by way of treaty amendment rather than by making Bills and examining them in principle and in detail in both Houses of Parliament. I have done my best, as I am sure have hon. Members, to study article 4. We find immediately, as the hon. Member for Southend, East discovered, that we do not know whether we are assenting to the setting up of an additional court of the European Coal and Steel Community, as it happens, in article 4, or two courts, or any number of courts.

It is inconceivable that a Government would dare to bring to the House a piece of legislation to set up a court, and that when we had read the legislation we could not possibly decide whether it gave power to set up one or two courts or any number of courts. We gather from a verbal expression to which the amendment of the hon. Member for Southend, East draws attention that there is a possibility of a plurality of courts.

By legislating by an amendment of treaty we are legislating in a fog on matters of substantial importance. It is a matter of substantial importance whether we as members of the European Community have to support the bureaucracy and top-hamper of one court, two courts or an unlimited pullution of junior courts or courts attached to the European Court of Justice. [Interruption.] I do not know whether any hon. Member dissented or objected to my use of the term "pullution". It seems to me to be perfectly appropriate to a process of multiplication which may be within the terms of this Bill.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

The right hon. Gentleman has great experience of this issue. I should be grateful if he could tell me why this part of the final Act comes under provisions amending the treaty establishing the European Coal and Steel Community. Does this court have reference only to the European Coal and Steel Community or is it likely to have other effects? This is the final Act and the provisions of the final Act. The Bill is the Bill, and what is contained in that is the law of the land. The Bill could go rather wider than this final Act.

Mr. Powell:

What fun this is. We are amending the law of the land by including in definitions in the European Communities Act 1972 various amendments of amendments, amendments by reference to parts of various treaties to which the United Kingdom is a party. It is not just legislation by reference: it is legislation by amendment of treaty by reference. That is what is happening and it produces some entertaining effects, one of which the hon. Member for Northampton, North (Mr. Marlow) has drawn to our attention, namely, that one has to look at article 11 as well as article 4 in order to find out what is going on, in order to add courts under the treaty of Rome to courts under the European Coal and Steel Community.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

The right hon. Gentleman is helping the House enormously by unravelling the meaning of these many treaty articles relating to clause 2. We are still not sure whether the court is a single court in the sense of being at the level of a High Court which can pullulate different chambers of justices. Does the right hon. Gentleman not think it remarkable that any Government of Her Majesty the Queen, who has courts in Britain, should come to the House with an almost indigestible series of pieces of legal jargon and without an accompanying White Paper that expounds clearly that which is intended?

Mr. Powell:

It could be that the clear exposition of what is intended would have been inconvenient, or is that an unworthy thought that entered my mind? I am glad to be assured that I am helping the House, and I assure the House that I am being helped by the different interjections, including the interjection by the hon. Member for Newham, South (Mr. Spearing). The hon. Gentleman raised a difficult point for a non-lawyer: when is a court not a court? Since he asks for it, my understanding of the matter is that a court can sit in different sections if it wants to, or if its rules permit that, but that that does not make additional courts in the way that we are providing for additional courts by this amendment of the treaty in article 4.

As I understand it—and any one of us could well be wrong—in article 4 we are creating something that is not a court of justice of the treaty of Rome, whether sitting in one piece or in different pieces, but a court subordinate to it in one particular, and additional to it in other respects. That is what I understand to be happening. What a predicament it is for us to discover when we are legislating—and we are legislating, though indirectly—that we have great difficulty in finding out on the face of the Bill what the legislation is possibly about. It is extraordinary for us to have a Bill that discloses none of the changes in the law that will be made if we accept the Bill.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South 9:15 pm, 16th June 1986

The right hon. Gentleman appears to be saying, for the purposes of debate, that, for convenience, we should refer to the additional court as the lower European court. However, is not the right hon. Gentleman incorrect in saying that the lower European court is a subsidiary of what is known as "the Court of Justice"? Article 32d makes it clear that there is no appeal from the lower court to the "Court of Justice" in the way that we have an appeal to the House of Lords. There is only an appeal on a point of law. Therefore, while the lower court is a subsidiary court, it is not a subsidiary in the way that we understand that term in this country.

Mr. Powell:

I am sure that the hon. Gentleman has construed correctly paragraph 1 of new article 32d in article 4 of the Single European Act. I want to leave that point after drawing attention to one other impermissible vagueness in what we are doing by making that amendment. The paragraph to which the hon. Gentleman referred mentions certain classes of action or proceeding that are to come before the new court. So we are asked to assent to the setting up of these courts attached to the Court of Justice and they are to deal with certain classes of action or proceeding". We are not told what certain classes of action or proceeding there are. No Government would dream of bringing before the House a Bill that left so substantial a matter so vague. That brings me directly to article 12.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

As this is meant to help people to go to the court, does the right hon. Gentleman, who has obviously studied the articles, know what is meant by a "natural" person who can go to the court? I have asked the Library, but it cannot find any trace of a definition in case law of "natural or legal persons" as opposed to an unnatural person.

Mr. Powell:

Endeavouring to construe from the context, I read on and found a reference to Member states of … Community Institutions and thought that perhaps they were the unnatural persons implicit in the wording to which the hon. Gentleman referred. Whether I am right or wrong and whether the hon. Gentleman's question is material or not, these are certainly matters that we would need to have cleared up if, in any proper legislative context, we were making new law, as we shall undoubtedly be making new law if we leave the Bill as it stands.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Could it be that, because continental law is seen so much as the handmaiden of the executive, that, as we approached a united Europe and as such political doctrines as convergence require greater intervention and a more effective attitude of interference by the European court, so it is envisaged that further courts may need to be set up, including, for example, "the convergence court", rather as we have our own Restrictive Practices Court?

Mr. Powell:

I see nothing in the wording that would exclude the hon. Gentleman's suggestion. I listened with great sympathy and agreement to earlier interventions by the hon. Gentleman on the radical difference in the concept of courts of justice within the framework of the EEC, and between the continental tradition and our own. Indeed, that is one of the grounds for my fundamental and instinctive detestation of the United Kindgom's adherence to the European Community. However, I am allowing hon. Members to tempt me into greater prolixity than I had intended, and so I shall hasten to article 12.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

I probably did not make my point clear the first time. I understand that article 4 enables the Community, through unanimity, to establish a supplementary court and to attach a further court to the European Court of Justice. But the Bill gives power to any courts established by the Community at any stage and at any later date. The Bill is therefore much wider than the European final Act.

Mr. Powell:

I share the hon. Gentleman's alarm at the expression "any" in the Bill. Indeed, the hon. Member for Southend, East has tabled an amendment to remove it. That expression certainly implies a laxity of use of the power that we are conveying, and the possibility of a considerable multiplication of courts.

I must return to the subject of article 12. We have been greatly helped by the means of discovering where title III of the statute referred to in the new paragraph to be inserted in the treaty of Rome by means of article 12 is to be located. However, the trouble remains that we are creating a new kind of delegated legislation. We are delegating, admittedly under certain conditions, to the Council of Ministers the right not just to make European law — the Council of Ministers is undoubtedly the legislature of the Community as it stands—but to alter treaties. Therefore, it is a delegation of the right of legislation by the exercise of treaty-making power.

During our proceedings on the 1972 Bill I remarked that as a Tory I was tender of the royal prerogative but that it had never occurred to me that even a Conservative Government would introduce legislation to make possible legislation by prerogative. Of course, it is legislation by prerogative of treaty-making that is here being delegated. Thus we have the monstrosity of the delegation by this provision of a form of legislation which is incompatible with the principles and spirit of our constitution. For the sake of greater completeness we should no doubt have an amendment that moves out article 11 as well as article 4. But when the House is seized of this matter, I hope that it will recognise that it has in its hands, if only for a few hours, the power to reassert the sovereignty of the House as against the Government's use of the treaty-making prerogative of the Crown.

It is no small business that we are about in debating this amendment, and I hope that not only the debate but the outcome will be worthy of the magnitude of the issue.

Photo of John Butterfill John Butterfill , Bournemouth West

My reading of the situation is somewhat different from that of other hon. Members. With my much briefer experience of the House, I am obviously loth to question the greater experience of other hon. Members, such as the right hon. Member for South Down (Mr. Powell).

However, it would seem that we are not creating a new court. We are admittedly creating a subsidiary court, or possibly courts, but we are doing so only in accordance with the first paragraph of article 4 or 11, which lays down the circumstances in which those courts can be created, and gives the ground rules. Such a court can be created only at the request of the European Court of Justice, and then only after consulting the Commission and the European Parliament and by the unanimous resolution of the Council of Ministers.

The dangers of some amazing new court with amazing new powers emerging have been grossly over-stressed, because the court will not have new powers. It will not have any powers which are not possessed already by the European Court. The European Court interprets the treaties. The only new powers which any court, including the European Court, could have would be those which arose from changes in the treaties. We are considering the extent to which this legislation may amend those treaties.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

My hon. Friend is wrong. The treaty does not envisage a static situation. It lays down a large number of principles—not all of which are consistent with each other — by which the European Community may proceed. My hon. Friend cannot, therefore, say that we are talking about the interpretation of the treaty at any one moment. We are discussing the interpretation of a living system of law.

Photo of John Butterfill John Butterfill , Bournemouth West

I am grateful to my hon. Friend. I hope to deal with that later.

Photo of John Butterfill John Butterfill , Bournemouth West

I am sorry, but I must continue. I shall give way later if I do not deal adequately with the point which my hon. Friend wishes to make.

We are concerned with the interpretation of the treaties and the extent to which they may themselves be living and changing. We must examine the contents of the Bill. We must consider the extent to which the Bill gives force of law to the Single European Act.

My hon. Friend the Member for Southend, East (Mr. Taylor) gave the impression that we were being asked to approve the whole of the Single European Act. That does not seem to be so, on my reading of the Bill. I believe that the Bill gives approval only to parts of the Single European Act and then only for the purposes of section 6 of the European Assembly Elections Act 1978. That gives rise to a rather nice position.

Article 33 of the Single European Act states: The Act will enter into force on the first day of the month following that in which the instrument of ratification is deposited of the last Signatory State to fulfil that formality. I am not sure how we formally ratify in that way. We certainly shall not be formally ratifying the Single European Act in that way this evening. If we do not ratify the Act in its totality in that way, possibly the Act will never come into force. The first day of the month following ratification might never arrive. Perhaps that is what the signatories to the Act intend.

This evening we are ratifying certain sections of that Act which are innocuous and fulfil a useful purpose—that of aiding the work of the European Court, of reducing the congestion which occurred as a result of the request to clarify the treaties and of providing for a subsidiary body to assist in the work of that court. To that extent, it is wholly—

Photo of Mr Bill Walker Mr Bill Walker , North Tayside 9:30 pm, 16th June 1986

I am not a lawyer, but I draw my hon. Friend's attention to the long title and its final few words: approves the Single European Act. Is that not what the debate is about this evening?

Photo of John Butterfill John Butterfill , Bournemouth West

Of course those words are in the long title, and to that extent it would have been possible for the Bill to contain that provision, but it does not go that far. No clause, as far as I understand it, fulfils that function. The only clause that actually ratifies the Act in any way is clause 3(4), which does so in relation to the European Assembly Elections Act 1978.

Photo of Mr Robin Maxwell-Hyslop Mr Robin Maxwell-Hyslop , Tiverton

My hon. Friend disputed the proposition that the court was not entitled to a static system of legal exhortations, interdictions and arrangements, but only to a moving one. There is frequent reference in the Single European Act to the European Parliament, yet the original treaty does not provide for a European Parliament. If that is not absolute evidence of a development, however illegal, pray what can be?

Photo of John Butterfill John Butterfill , Bournemouth West

My hon. Friend knows full well that he is talking about semantics—

Photo of John Butterfill John Butterfill , Bournemouth West

The use of the words "European Assembly" has no real meaning. We may call a Parliament a Parliament in this country, but in France our equivalent is called an Assembly and in America it is called a Congress. It is a question of semantics and has no legal significance. If people want to argue about what they call the thing that I choose to call the European Parliament, and which this Bill, if we pass it tonight—

Photo of Mr Ernest Armstrong Mr Ernest Armstrong , North West Durham

Order. I allowed the hon. Member for Bournemouth, West (Mr. Butterfill) to reply to the intervention, but he is now going wide of the amendment.

Photo of John Butterfill John Butterfill , Bournemouth West

I had hoped that I was confining my remarks to the subject of our debate. If, in responding to an intervention, I strayed from the path that you would wish me to follow, Mr. Armstrong, I apologise.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I am following my hon. Friend's remarks with great interest. I ask him to consider honestly what he is saying. He said that the provisions of the Bill were innocuous. Does he think that the inclusion of a legal commitment by the United Kingdom to go with the harmonising of indirect taxation is innocuous? I accept his arguments for and against it, but I hope that he will accept—

The First Deputy Chairman:

Order. The hon. Gentleman is going down a road that is not concerned with the amendment.

Photo of John Butterfill John Butterfill , Bournemouth West

As I thought I said earlier, my interpretation of the Bill is that it confines itself to certain fairly narrow elements of the Single European Act and does not seek to approve or ratify the Act as a whole.

Photo of John Butterfill John Butterfill , Bournemouth West

I have concluded my remarks. If my hon. Friend wishes to make a point, I am sure that he will be given the opportunity to do so.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

I thought that the debate on which we embarked some time ago about the extra court would be relatively short, with the Minister in due course answering a number of questions put by right hon. and hon. Members. However, it has developed, rather unusually, into a major constitutional debate, and that shows the House at its best. We have discovered that even a matter which, on the whole, seems to be relatively innocuous prima facie has implications and repercussions that go much wider than the mere wording of the change that we are asked to bring about in British domestic legislation.

I begin by asking the Minister to clear up the issue of how many European courts exist. I shall make an attempt myself to do so, and I hope that the Committee will bear with me. Why was it necessary in the Single European Act, and why, therefore, is it necessary in the Bill, to refer to articles which amend the EEC treaty, the ECSC treaty and the European Atomic Energy Authority treaty? I thought that the three basic treaties were combined some years ago into what was supposed to be the single European Community treaty.

I am strengthened in my thinking by the treaty of Rome, a copy of which I have to hand. On page 146 is one of the protocols that is attached to the treaty, and article 2 refers to the European Court of Justice. Article 3 states: The jurisdiction which the Treaty establishing the European Economic Community and the Treaty establishing the European Atomic Energy Authority confer upon the Court of Justice shall be exercised, in accordance with those Treaties, by a single Court of Justice composed and appointed as provided in Articles 165 and 167 of the Treaty establishing the European Economic Community and in Articles 137 to 139 of the Treaty establishing the European Atomic Energy Community. For some reason there is no mention in that article of the European Coal and Steel Community. It makes it clear, however, that there was from that time a single European Court of Justice. The following articles, which I shall not weary the Committee by repeating, mention a single European Court of Justice. Unless the Minister says something different—I hope that she will not—when she replies, we must work on the assumption that there is but one European Court of Justice.

Another question for the Minister is why the European Court of Justice and the subsidiary court mentioned in the Single European Act are now to be brought into our domestic legislation by clause 2. Why was this intention not mentioned in any of the summit communiqués of last year? I confess that the first moment that I realised that there was to be an addition to the European Court came when we had the Single European Act, and then with the Bill. The provision seems to have been inserted in the Single European Act, as a result of the intergovernmental conference or conferences of the summer and autumn of 1985.

That happened with remarkably little publicity. I do not think that one of the instructions given to the intergovernmental conference or conferences by the summits in March and June of 1985 was to talk about creating a single internal market and improving decision-making, for example. It was not an instruction from the Heads of Government at those meetings that the European Court should be empowered to have a subsidiary court. I do not know where the proposition cropped up.

The purpose of the subsidiary court is unclear. I have armed myself with a copy of the proceedings of the Select Committee on Foreign Affairs that took place on 7 May. I am glad that the Minister of State, Foreign and Commonwealth Office is on the Treasury Front Bench because she went before the Select Committee on that day to answer questions about the Single European Act. I am no longer, much to my regret, a member of that excellent Committee. The members of it, however, did an extremely good job, and one of them asked the Minister several questions about the legislation affecting the European Court and the new subsidiary court.

Question No. 180 was asked by an hon. Member: Could I just ask you now about the Court of Justice? The Single European Act enables the court of first instance to be attached to the Court of Justice. It is purely permissive, it is not mandatory. You, Minister"— the Minister of State, Foreign and Commonwealth Office, the hon. Member for Wallasey (Mrs. Chalker)— appear to have implied in the Second Reading debate that the work of this additional court would he limited to dealing with internal Community staff matters. Could you confirm that this is certainly the intention of Her Majesty's Government because the Treaty certainly is by no means exclusive on this point? The hon. Lady replied: Indeed, it could go"— the remit of the new court— slightly wider, but that would be at the discretion of the European Court of Justice. The problem which has occurred is this: the workload of the Court of Justice has increased threefold over the last decade. Some half of the workload involves staff cases which are not legally significant, I am informed, but are of course very time-consuming because they deal with the matters of individuals. There is no question of increasing the powers of the Court, but it is a question of the redistribution of the workload and the court of first instance would be attached to the European Court of Justice. It will take on some of its work at the behest of the European Court of Justice"— I am not sure about the word "some"— but it will not take on new work— I do not know whether the words "new work" mean work which comes direct from outside the European legal system, such as it is, or whether they mean new work which comes from the European Court itself. It is a bit vague.

The Minister continued: and it will not have new powers, any powers of its own; it is part of the European Court of Justice. I shall continue with that point because it is to the Committee's advantage that we understand what the hon. Lady said and what queries were raised. The questions are pertinent to the matters raised by all hon. Members regarding the amendments and clause 2. The hon. Member went on to ask, in question No. 181: As I understand it, it is hoped that the new court will reduce the main court's workload by dealing with actions by Community staff against the institutions employing them and also, as I understand it, in cases raising complex issues of fact, specially competition and anti-dumping cases. I just wondered whether this was so. Is that the intention of Her Majesty's Government'? The hon. Lady replied: The point about the court of first instance is that it only has those powers which are delegated to it under the European Court of Justice, it has none of its own. That was a repetition of the previous answer. She continued, and I emphasise: We are awaiting detailed proposals from the European Court of Justice as to what subjects will be dealt with or are suggested to be dealt with by the court of first instance. Therefore, as of 7 May— the hon. Lady may have further information for us tonight—the Government did not know what subjects would be dealt with by the subsidiary court. I do not wish to demean the court by calling it a "subsidiary court-. It seems to be a shorthand way of describing it. It does not have a name at present.

The Minister later told the Foreign Affairs Committee: But in all probability it is … cases which involve that time-consuming fact-finding and those of minor legal importance which currently account for over half the cases that come before the Court. She said, and I stress: Other work which might be involved is in the industrial and commercial field which simply entails unravelling the most complicated issues which take so much time but which do not actually have a final bearing on the outcome except for the information which they supply. That suggests that the Government are not clear about the relationship between the subsidiary court and the Court of Justice, apart from not being clear what powers it will have and what work it will do.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Does the hon. Gentleman agree that this extended court could be especially useful if the EEC countries agreed to a major policy of sanctions against South Africa? As we all remember from the previous period of sanctions against Rhodesia, it is often extremely difficult to ascertain the facts. No doubt, it would be useful to have another court to look into those problems.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow 9:45 pm, 16th June 1986

I cannot answer the hon. Gentleman's point because I am not in charge of the Bill. The Minister may be able to help, if she has more information than she was able to provide the Select Committee on Foreign Affairs on 7 May. We shall know a little later.

Is this subsidiary court necessary? I do not mean "necessary" in terms of work, because we still do not know what work it will do or what powers it will have. I mean "necessary" in terms of the amended treaty of Rome. Section 11 of the convention on certain institutions common to the European Communities concerned the European Court of Justice. Article 4(2) stated: To this end, on the date when the single Court of Justice referred to in Article 3 takes up its duties: (a) Article 32 of the Treaty establishing the European Coal and Steel Community shall be repealed and the following provisions substituted therefore". I confess that I had not realised when we were debating these matters in 1972 that one article appears to refer to two of the basic treaties and another to the third of the basic treaties, but in a different light. I should have thought that the aim in unifying the Community was to have one form of justice and common institutions and rules. New article 32 stated: The Court"— the single European Court of Justice— shall consist of seven Judges.The Court shall sit in plenary session. It may, however"— the right hon. Member for South Down (Mr. Powell) and others were concerned about this— form chambers, each consisting of three or five Judges, either to undertake certain preparatory inquiries or to adjudicate on particular categories of cases in accordance with rules laid down for these purposes. If there is already power for the single European Court to divide up its judges so that they can make preliminary inquiries and do the fact-finding, devilling and donkey work, if I may use that non-legal expression, which the Minister of State mentioned in her answers on 7 May to questions 180 and 181, is it necessary to have a subsidiary court?

Photo of Bill Cash Bill Cash , Stafford

The answer may lie to some extent in a problem which has concerned the interpretation of the treaty for some time, known as the contentious jurisdiction of the court. Effectively, this provision in combination with article 12 provides a means whereby the vacuum in the ability to enhance the jurisdiction of the court can be filled, rather like the provisions of article 235 of the treaty. That may have something to do with the problem which faces us.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

I bow to the hon. Gentleman's superior legal advice. I am certainly not a lawyer, as he is.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

I suggest that the hon. Member for Walthamstow (Mr. Deakins) attaches insufficient importance to the difference between the continental inquisitorial system of justice and our adyersarial system. In our system it is not the judge's duty to adduce evidence and find out the truth. He simply sits and listens to such evidence as is brought before him and makes up his mind on that evidence. The continental system is different. The judges believe that there is something called objective truth. They go out and try to find it and they inquire about it.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Not especially the French. However, the same system extends to most of the continental systems. It may well be that they are envisaging systems by which they will set up preliminary inquiries so that, for the sake of argument, if they are inquiring into the power to control and enforce any future EEC sanctions against South Africa, they will set up an inquiry quite different from the inquiry we set up to look into that control. It would be necessary to have some form of subsidiary court which would sus out the information and it would then go forward for further consideration by another part of the court.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

I accept what were probably strictures from the hon. Gentleman. I accept his example that the English legal system is very different, as we all know, from the continental system — although I think that the Scottish law has some similarities. However, I do not think that that is necessarily what the Government have in mind or what might happen.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

We do not know. We shall not be told, either.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

No, we do not know. There are analogies in the English legal system. As I understand it — there are are plenty of lawyers in the House who will immediately correct me if I am wrong — normally a superior court will not query the findings of a lower court on matters of fact. We have a system of magistrates courts, for example, and we also have Crown courts and courts of criminal appeal and so on. It is not normal in the English legal system for superior courts to go through the business of fact-finding again. It may be that what they have in mind, although it is the continental system, is the need to have a subsidiary court to find fact.

My point is that we do not need a subsidiary court to do that work. I appreciate that that work is necessary and that it is time-consuming and boring and so on. However, if the judges can divide themselves into chambers and, presumably, little subsidiary courts in their own right, what need is there for legislation, for the Single European Act and for changes in the basic treaty?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

I would like to think that what the hon. Gentleman says is the full story. I accept that he may be right in saying that there is no need for the Single Act. However, line 4 of article 32(d) refers to a court with jurisdiction to hear and determine at, first instance". It seems that what is proposed is something not just to establish the facts but to determine certain classes of action brought by natural persons. I can see problems because in British law we do not have a definition of a natural or unnatural person. The hon. Gentleman would be wrong to think that it is just fact-finding. It provides for the courts to have the power to determine certain classes of action.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

The hon. Gentleman has raised another important point. I accept that the Minister will do her best to answer, but I would have thought that on issues of that sort we might need some strong legal advice, perhaps from the Law Officers. The relationship between the European Court of Justice and the subsidiary court, if it is set up, is not clear. If the hon. Gentleman is right and the subsidiary court has the right to determine matters as well as do the fact-finding and devilling—let us assume that that is the case — is there going to be a right of appeal from a subsidiary court to the European Court of Justice? As far as I know, that is not mentioned.

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

The hon. Gentleman has hit on a fundamentally important point. He should read article 32. Like the hon. Gentleman, I am sorry that we do not have any Law Officer present on a vital legal issue. It is staggering that on an issue affecting British courts we do not have a single Law Officer in the House. Will the hon. Gentleman accept that it states clearly that the right of appeal is only on a point of law. The hon. Gentleman will find that chapter 1, article 4, 32(d) refers to jurisdiction … to determine at first instance, subject to a right of appeal to the Court of Justice on points of law only". We are setting up a new subsidiary court which can determine certain classes of issue on which there is an appeal only on points of law. This is a staggering new development in the way in which we determine legal action that affects us all. We are having to discuss it without the presence of any of the Law Officers. We should not proceed until a Law Officer is present.

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

I leave that to the Chair and the Minister.

The hon. Gentleman has raised another important point. The Single European Act makes it clear that there is a right of appeal on a point of law—

Photo of Mr Eric Deakins Mr Eric Deakins , Walthamstow

Indeed. That is in line with the English hierarchical system of courts. One can appeal against sentence, but there is mainly an appeal on a point of law rather than on points of fact—

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

On a point of order, Mr. Armstrong. I wonder whether this will be helpful to the House. This is a complex matter. Some hon. Members are lawyers, and understand this well, but even some of the lawyers feel that it is inappropriate to continue the debate until we have a Law Officer in the House, because I believe that—

The First Deputy Chairman:

Order. The hon. Gentleman knows that the presence of Ministers is not a matter for the Chair.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

Further to that point of order, Mr. Armstrong. Can you advise us how we can require the attendance of the Attorney-General or the Solicitor-General? Of course, we do not wish in any way to act improperly in raising this point of order, but if you were able to give us—I do not put it so vulgarly as "a nod and a wink"—a little informal guidance, it would help us in deciding whether it was worth the Committee's while to continue. We have a difficult—

The First Deputy Chairman:

Order. The hon. Gentleman has been here long enough to know that when he raises such matters the Front Bench may hear, but the presence of a Minster is not a matter for the Chair.

Photo of Mr Nicholas Budgen Mr Nicholas Budgen , Wolverhampton South West

I understand, but sometimes one finds that the Front Bench benefits from the guidance of the Chair. One of the glories of our constitution is not only that it is unwritten but that sometimes its oddities and difficulties are overcome by a combination of friendliness and informality. If a little guidance were given by the Chair to the Front Bench, we might understand these things a lot better.

Apart from going for a cup of coffee, I have listened to most of the debate. As far as I can gather, we have had extraordinarily little clear exposition of the hierarchy of the courts. No doubt somebody could instruct us on that —either the Attorney-General or the Solicitor-General. It would be a good thing if that were done. I might be permitted to say, in a sexist way, that it would be a gallant act. It would be a demonstration of the sexist way in which the Law Officers come to the aid of the lady in difficulty.

The First Deputy Chairman:

Order. I cannot refer to a point of order that was not a point of order. Let me reply to the hon. Gentleman's brief intervention. I am heartened by his confidence in the way in which the House is ready to receive my guidance, but the presence of a Minister is not a matter for me. I have no doubt that the Front Bench will have taken note of what has been said.

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

On a point of order, Mr. Armstrong.

The First Deputy Chairman:

Order. Is it on the same point of order?

Photo of Mr Tony Marlow Mr Tony Marlow , Northampton North

It is a different point of order.

We all have the greatest respect for my hon. Friend the Minister of State. She has a great deal of knowledge, and very great communicative skill, but I was wondering, as a result of the last few comments by my hon. Friend the Member for Wolverhampton, South-West (Mr. Budgen), whether the Minister might like to come to the Dispatch Box and tell us how she intends to deal with some of the more intricate legal matters. Is she considering asking one of the Law Officers to join our debate?

Photo of Mr Teddy Taylor Mr Teddy Taylor , Southend East

Further to that point of order, Mr. Armstrong. I should like to draw your attention to clause 2(b), which says that our constituents could be tried and punished. When the Government are proposing the approval of a new court from which there will he no appeal whatever, apart from on a point of law, and our constituents could be punished without the punishment being made clear, in respect of the protection of the general public and our rights and privileges as Members of Parliament, surely that matter affects our privileges as Members of Parliament. Should the matter not be referred to the Committee of Privileges? If we are asked to approve a court which can punish our constituents without any appeal, except on a point of law, a matter of privilege must arise.

The First Deputy Chairman:

That is a matter for debate and the hon. Gentleman should raise it at the appropriate time.

Photo of Mr Nigel Spearing Mr Nigel Spearing , Newham South

On a point of order, Mr. Armstrong. I think I may be able to help the Committee on this point. In evidence to the Select Committee on Foreign Affairs, the Minister, in answer to a question from her right hon. and learned Friend the Member for Hendon, South (Mr. Thomas) as to the Government's intention, said—

It being Ten o'clock, THE FIRST DEPUTY CHAIRMAN left the Chair to report Progress and ask leave to sit again.

Committee report Progress.