—— but my experience of the Fianna Fáil Party is that about once every two years—and twice this year already—their drafting of laws is so defective that they are found to be in conflict with the Constitution. Consequently, I am not prepared to believe that they or, frankly, anybody else, could so draft a list of amendments involving particular Articles as to exclude the possibility that some Article overlooked could be used by somebody seeking to overturn EEC membership in the courts and used successfully on some legal point. I nearly said some legal quibble. That is the problem we have to face. If we are to make sure that the Bill does what we want it to do and that the Irish people are not frustrated, we must have a wording which is watertight as regards effectiveness and not capable of being challenged in the courts.
On the other hand, we must also ensure that the Bill does no more than is necessary. It would be quite wrong if we permitted our Government to legislate in this House in a manner not required by EEC membership and in a manner that could over-ride the Constitution. That would be quite wrong. We must do nothing that would give to our Government the power to legislate on a matter where EEC membership does not require legislation in a manner that would over-ride the Constitution. That is the first thing we have to ensure.
Secondly, we must ensure that any legislation enacted by the EEC which over-rides our Constitution is necessitated by the obligation of membership of the Community. It would be wrong if the Community at any stage purported to legislate—any of the three Communities as there are technically three—in relation to a matter which did not arise from the Treaties and which did not involve obligations of membership of the Communities. If such legislation were to be introduced by them, it would be ultra vires the Treaties. If that legislation even though it was ultra vires the Treaties should over-ride our Constitution that is a danger which has to be guarded against. That is something with which we must concern ourselves. It is not, perhaps, a great danger but we must ensure that nothing is done that involves over-riding anything in our Constitution beyond that necessitated by membership of the Communities.
So we walk a tight rope in this legislation. Not surprisingly there are disagreements between us and, indeed, I am sure these disagreements are quite genuine. We are trying to make sure that the Bill is watertight, that it covers all possible cases and that it does not overlook some aspect of the Constitution which could be used in some technical way in the courts to invalidate the decision of the Irish people and, secondly, we want to make sure that the Bill does not permit our Government to legislate on matters that are not required by the EEC in a manner that over-rides the Constitution and that it does not permit the EEC, purporting to act under the Rome Treaty or the Paris Treaty but not actually doing so, to over-ride our Constitution. That is the tight rope we walk.
Given that situation there are several approaches. In a sense there are basically two approaches but the second one has two sub-approaches. The first approach is the one proposed by the Labour Party, as I understand it, in which we amend each Article of the Constitution that requires amending. The difficulty here, as I have already indicated, is to be sure which Article needs amending. I will be talking later about some of the points made by Deputy Keating. To me Deputy Keating conclusively disproved his own case because he raised a series of doubts about Articles of the Constitution. He mentioned Articles that had not hitherto been mentioned, for example, Article 10, on which I totally failed to follow him. He may have a point but I could not follow it.
He raised doubts about it. He said there might be something here which would conflict with EEC membership and might have to be dealt with. Once you get to the stage where you are going through the Constitution and looking at Articles and saying: "There might be something here that would involve a conflict," and once there is such evident uncertainty as to which Articles might or might not conflict with EEC membership now or in the future, then you are in a position where any attempt to legislate, as the Labour Party suggest, Article by Article, is bound to fail.
The fact that Deputy Keating produced Article 10, which had not struck me as a problem at all, suggests that some other ingenious claimant before the courts in future years might take some other Article we have not thought of, and which the Government did not think of, and which the Labour Party did not think of, and say: "This was not covered by the constitutional amendment and, on these grounds, I claim that the EEC is in conflict with our Constitution." The law being what it is, and constitutional law being what it is, such a claimant might will be proved right and EEC membership overturned, the wishes of the Irish people frustrated, and possibly very severe economic hardship inflicted on this country if it was forced into a situation of having to leave the EEC even temporarily at that stage. No doubt that could be remedied by a further referendum. We must be careful about that.
Deputy Keating, in his skilful attempt to illustrate how many Articles might be affected, totally undermined his own case for approaching the Treaty Article by Article. He showed to me, anyway, that no matter how carefully one approached it, the final result might be that one might omit some Article which might prove crucial. That approach, therefore, is too dangerous. The whole thing could be upset. I do not think that any party concerned to ensure that the wishes of the Irish people are carried through and that they are not frustrated on a legal technicality could reasonably advocate that approach. We are forced, therefore, to adopt the alternative approach, that is, a global amendment rendering membership of the Communities compatible with our Constitution.
There are two possible ways of approaching that global amendment. I think that in terms of constitutional law the method adopted by the Government is the least satisfactory but in terms of politics, in terms of ensuring that we do no more than is necessary, no more than the Irish people want us to do, and that we do not put them in a position of having to vote for more than they want to vote for, and more than they need to vote for, perhaps, the Government's solution is the better one. These two approaches to the global amendment technique are, on the one hand, to have a general amendment related to economic co-operation and Irish participation in economic unions or communities expressed generally, and on the other hand to name the communities involved.
In general, constitutions express themselves in very general terms. It is not normal in a constitution to refer to specific bodies other than the actual organs of Government in the State. For example, in Article 29 when this Constitution was drawn up for reasons that were probably good in constitutional practices as well as in current Fianna Fáil politics at that time, I think it was right that the king should have been submerged in verbiage, as he was. You will find the king nowhere in our Constitution by name. There he was and there he stood. He signed our passports and he accredited our ambassadors and our foreign ambassadors were accredited to him.
All that was done in an Article in which the poor king never got a mention. At the time I am sure much was made of that in this House. It certainly was convenient for Fianna Fáil to tackle it in that way. It was an ingenious way of producing a constitution which could become a republican constitution if at any stage we decided to become a republic and to eliminate the king. It was a very ingenious piece of drafting. I think it was basically drafting in accordance with the sound constitutional principle of avoiding specific references and speaking in general terms.
The terms used are:
For the purpose of the exercise of any executive function of the State in or in connection with its external relations, the Government may to such extent and subject to such conditions, if any, as may be determined by law, avail of or adopt any organ, instrument, or method of procedure used or adopted for the like purpose by the members of any group or league of nations with which the State is or becomes associated for the purpose of international co-operation in matters of common concern.
One would need to know a good deal of Irish history and constitutional history and politics to know that that meant the king. It was under that beautiful piece of general verbiage of an unspecific character that I got my first passport and, indeed, I went on my honeymoon under the protection, God help us, of King George V who, at that time, was almost 12 years dead. The sense of economy of the Government at that time was such that even after the king had died, they continued using his passports until such time as it was necessary to reprint some more. I got my passport in 1938, two and a half years after the king had died and I went on my honeymoon on that passport in 1947. If nothing else, that illustrates something of the sense of economy of the Department of External Affairs.
Under that principle it would be good constitutional practice if, instead of the wording of this amendment it were worded, for instance, "the State may become a member of an economic union or community of countries and if it does so the following can flow from that". That would be the better approach but in the present circumstances it is right that we should set aside good constitutional practice and that we should abandon the principle of generality in constitutional drafting and that we should be specific, because if the Government had adopted that general terminology and then, depending on the exact words used, it might have been alleged that in some way there was opened up the possibility of our involving ourselves in some other kind of community with obligations not known to the Irish people at present and that that could be done without the wishes of the Irish people being consulted at a referendum. That could have been a good political point. Indeed, it might have been a good legal and constitutional point, but the desirability remains of narrowing this down to the net issue so that extraneous issues such as other Deputies have tried to drag in, for example, defence and foreign policy, could be excluded absolutely. Therefore, the Government were wise in what they did in abandoning the kind of constitutional practice illustrated by the present wording of Article 29 and they were wise in taking the line of naming specifically the particular Communities in question. To me, that approach is the one that is preferable.
Therefore, I sum up my remarks at this stage by saying that we reject the approach of naming each Article of the Constitution separately because even someone as ingenious as Deputy Keating might fail to spot one which some subsequent person might spot, challenge in the courts and overturn the decision of the Irish people. On practical political ground, I reject the possibly preferable solution on constitutional terms of a general reference to economic union within the Communities and I favour the particular approach which the Government adopted of naming the Communities in question and then saying that anything necessitated by virtue of these Communities shall be compatible with the Constitution.
Where I fault the Government is on the particular wording they use. Although the structure of the amendment seems to me to be right and I find it hard to see or accept any argument against its overall structure. I cannot accept the actual wording. On this score we must challenge the Government and insist—I use the word advised—that it be amended in the manner suggested by Deputy Cosgrave, in a manner necessary to limit this amendment to the minimum necessary for the purpose at hand.
Before developing the question of amendment, I should like to look at some of the Articles of the Constitution that have been referred to and to make some comments on them. Article 1, which was referred to by Deputy Keating, is the Article which mentions the inalienable right to determine our relations with other nations. Frankly, I could not follow the Deputy's argument because what we are doing in joining these Communities is exercising this inalienable right. If, in fact, any exercise of the inalienable right involves alienating it, then Article 1 is meaningless in this respect and although I agree absolutely that the extent to which there is a sharing of our sovereignty in this Treaty was far beyond that in any previous treaty, that it is quite different in its character and that it is right that the Irish people should be told this, nevertheless, any treaty or agreement with another country which limits the rights in international law of this country to act in accordance with its particular wishes at any point in time, involves giving up a right. As Deputy Keating would seem to suggest, it involves alienating it.
However, if any exercise of our inalienable right to determine our relations with other nations involves alienating the right, then, Article 1 is meaningless and, so, that argument falls to the ground. Any action which we take in this Parliament in accordance with our Constitution in our relations with other nations is an exercise of this inalienable right. What is meant by Article 1 is that nobody else can push us around in this respect; that nobody else can tell us what we are to do in our relations with other nations and that only we can decide to what extent we will share our sovereignty in any particular instance. Our inalienable right means that the British Government, which for so long exercised sovereignty over this country, no longer has power to do so. It means that only by the voice of the Irish people could we sign a treaty or join the Communities we are now joining. It is nonsensical to give any other meaning to Article 1. Therefore, it seems to me that Deputy Keating's point is a bad one.
Again, on Articles 2 and 3, I do not understand the point made. This country signs treaties regularly. We sign quite a number every year and we sign them on behalf of this State, not on behalf of national territory. We have never claimed to do so and nobody has ever suggested or recognised any right on our part to do so. This Treaty, like every other treaty we sign, will be signed on behalf of the State. Our rights are confined to that. According to international law, we are not the sovereign power in Northern Ireland. We all have our aspirations with regard to Irish unity, to which we are entitled and which can never be taken away from us until such time as they are fulfilled, but our right to represent the interests of the people and our right to sign an agreement is limited to this State. No other State in the world has suggested or would suggest any decision other than that. Most States are jealous that each State would concern itself with its own affairs and confine its actions to the area over which it exercises sovereignty de jure and de facto. Therefore, to suggest that in signing this Treaty we are in some way giving up some claim that we have, even if the way in which we press that claim is always desirable, which it is not, is to suggest equally that all treaties signed in the past involved giving up this right. I see no difference in this Treaty than any other and the argument is as spurious as the argument put forward in 1949 for not joining NATO. I am not suggesting that we should have joined NATO, nor do I think that we should do so now or ever, but the argument put forward at the time was that Article 4 of NATO involved a mutual commitment to defend each other's territories and that by that reference we were in some way giving up a right of some kind in respect of Northern Ireland. In so far as there was any sensitivity on that, a footnote reserving our claims would have met the situation but that decision was taken on wrong grounds. The decision itself was a good one, but taken for the wrong reasons. There is no good pretending there is something peculiar about this particular Treaty.
On the question of sovereignty and Article 5, I, unfortunately, was not able to hear Deputy Ryan. I regret that because I would be interested to hear how he developed this theme but I believe that my views on sovereignty would be very close to his. I understand that he traced back sovereignty for some time. It is right to do so.
Sovereignty is something that we have come to associate with a particular single level of government. This is a very curiously simplified concept which to somebody in the medieval period would have seemed native in that anybody could be so silly as to think that sovereignty must rest with one particular level of government. I suspect that if such a view were expressed in medieval Europe, people might have laughed and said: "Well, he comes from a rather primitive part of the world where they do not yet understand how governments work." What is curious is that we have reverted to this attitude during the last three centuries. Sovereignty is something that can rest at several different levels. In fact, in medieval Europe, under the feudal system, sovereignty rested at many different levels. There was no one level at which there was total sovereignty. A feudal lord, owing allegiance to a superior lord, did have sovereignty, that is, the final right to dispose of a number of matters without any interference from above. In other matters those rights were reserved to his superior lord. That system ended because of the evolution of the absolute monarchy in the 16th and 17th centuries. The absolute monarch arrogated to himself all power, taking it from inferior feudal lords or, in some cases, from superior feudal lords, whether the emperor, the Pope or some other monarch from whom he held territory and, indeed, taking power also away from free cities under him, free communities under him and concentrating all that power at one level.
Then, as time passed on, these absolute monarchs gave way to democracy and all power became vested in the democratic Parliament of the people and so we end up with a position which to a medievalist would have seemed intolerable, that the Government here can abolish Dublin Corporation. All power is concerntrated at one particular level. That is a very native concept which is a particular emanation of absolute monarchy in Europe and if one looks at the perspective of history it does not make much sense. It is a curiously inadequate concept because, just as in the feudal period there were good reasons for power being shared at different levels, so today, more than ever, sovereignty cannot be concentrated only at one level because the decisions that have to be made are ones which cannot in practice be made only at one level.
You can concentrate a lot of power at the level of the State, you can take all rights away from subordinate bodies so that they can be abolished at the stroke of a pen—this is our system; it works in a kind of way— but it is alienating people from authority because once you get a situation where there is no power that has any right of its own other than the sovereign government of a nation and nothing underneath it, then people are levelled down and lose their sense of involvement and you get an undesirable situation. It is my hope that we will, as time goes on, learn to develop power so that there may be inferior sovereignties, that there may be in the future regions of Ireland which, for certain purposes, exercise sovereign power that cannot be taken away from them by the Government. That would be a healthy thing and out of that would emerge much more involvement of people in running their own affairs.
At the moment that does not concern us. What concerns us is the other way up, the fact that there are many decisions which no country can take on its own with any reality. The pretence that any country in Europe, for example, is in a position to control monopolies and international companies whose operations extend throughout the Continent and other continents is absurd. No one country in Europe can tackle companies like Standard Oil, for instance. It is indeed questionable whether even on a continental scale some of them can be tackled. I should hope they could. This is because many problems are moving to the scale where they cannot be tackled nationally and the necessity emerges for international action. National sovereignty at this stage if maintained absolutely undiluted, simply means that the people acting through their democratically elected Government confine themselves to a position of powerlessness in the face of private interests who do not confine themselves to single States or nations but whose power extends worldwide. As long as individual nation States do that, as long as the people of Ireland, the people of Britain, France or Germany, continue to confine themselves in that way and not recognise the need to tackle these problems on a continental, and later on a world scale so long will the peoples of the world be exploited by private interests instead of controlling private interests to their advantage.
The curious thing is that this argument, to me absolutely compelling, seems not to hold any attraction for those whom I would have thought should be attracted by it, members of a socialist party and a socialist party should be and is, to some degree, an international party. I do not understand their cavalier rejection of this. I can only attribute it to the unfortunate influence on the development of Irish socialism of some aspects of James Connolly's teaching, if I may dare to make a criticism of one of our national heroes in this House. I think his influence is, in some respects, unfortunate.
I want to establish clearly that unless sovereignty is shared in regard to certain economic decisions at a higher level the people will suffer. They will be exploited instead of controlling their own destiny. It is not simply at that level. On issues like advertising, for instance, what hope is there of our controlling abuses of advertising when any attempt to do so in Irish papers in respect of Irish goods would only inhibit Irish firms in competition with international firms, English firms, advertising in papers or television reaching this country? We cannot control the abuses of commercial advertising alone. Only on a European scale could it be controlled, only, perhaps, eventually on a world scale. To pretend we have power to do so is nonsense. We have the legal right to control it but the exercise of that right would be so damaging to our own interests that we dare not do it. Take industrial democracy. Can we proceed to introduce industrial democracy without being inhibited by the fear that if we do so, when other neighbouring countries do not do so, we will lose foreign investment, that it will go elsewhere? I do not think so. We have to have regard to that. Progress in industrial democracy can only be made on a European wide basis. I do not believe we will make real progress so long as we must fear competition from other capitalist States in this respect. The competition of international capitalism leads inexorably to the need for some kind of communal control over these key decisions. Those who pretend that by sitting back in our tight little island we can govern ourselves and control our own interests when countries like France, Britain and Germany despair of doing so unless they get together are not facing the reality of the situation and they are unconsciously betraying the interests of the Irish people.
It is quite clear from the whole development of sovereignty and the way in which it has been exercised in the past that the devolution of sovereignty upwards in respect of certain functions does not render a State any less of a sovereignty. A practical example is Germany in the period 1871 to 1918. In that period there was a German Empire but some of the German States retained their sovereignty. They may not have had much power because of the superior power of the Prussian army in the military situation they were in but they were recognised as sovereign States and they retained functions which could not be interfered with by the German imperial authority. That situation evolved into a single nation State because of the linguistic and cultural ties between these communities but they were sovereign and recognised as such.
What distinguishes a country as a sovereign State? It seems to me that the residue of sovereignty must rest with the State. It may have devolved upwards or downwards in certain aspects of its sovereignty but the basic elements of sovereignty must rest with it and its sovereign status must be recognised by other countries and its right to exchange diplomatic representation and to negotiate agreements with other countries must be recognised. That is what sovereignty means in international law, if I may express it in layman's language as somebody who knows very little about international law. That is the sovereignty which we have and which we shall retain within the EEC. To suggest otherwise is nonsense. Of course, part of our sovereignty in economic affairs we shall share with other countries. That will not make us other than a sovereign, independent, democratic State and Article 5 of the Constitution is unaffected. Indeed, I would be prepared to stake a lot on it. If we were saying which Articles would be affected I would be prepared to put my money on leaving that one out, and take my chance of the Supreme Court ever deciding that we were not a sovereign State. Of course, they could not decide anything of the kind if we were a member of the EEC.
Deputy Keating also suggested that within this Community we would not be sovereign because we only have ½ per cent of the GNP, whereas Germany, with 20 per cent of GNP, would be sovereign. I do not know what this means. To me it is meaningless. "Bigger countries have more interest than smaller ones." It is precisely why, therefore, we must join the Community because it is the exercise of the greater power of larger States which enables them to exploit weaker and smaller States. The reason why the EEC is necessary, the reason why it has been accepted enthusiastically by the smaller members of it and why they are the ones who are the great exponents of it is that it gives protection against exploitation by larger countries. The reason why we should join, the reason why there is incalculable—and I use that word advisedly—economic advantage to us to join is that it will end the power of Britain to exploit this country economically. That is the reason why it is important that we should join from an economic viewpoint. It is because within it, even with our ½ per cent of GNP and our 1 per cent of population and our much larger but still small 5 per cent of voting power, we will be guaranteed against exploitation, whereas if we remain outside we can be exploited and will be exploited as we have been exploited for the past 50 years and nothing said by opponents of EEC membership has ever suggested in the slightest way what we can do to stop ourselves being exploited by other neighbouring powerful countries.
They talk about our remaining outside and suggest that in some way it will benefit us but they cannot tell us how the exploitation we have suffered from would end, how they propose to take away Britain's or these other countries' power to exploit us if we remain outside. That is not explained because it cannot be explained, because it cannot happen out, be joining, this power can be removed and that is precisely why there is an expansion of sovereignty by joining, because it enables us to protect our rights in a way in which we cannot protect them outside. That is a sharing and expansion of sovereignty and it makes it worth our while to join. So much for that one.
Article 6.2 is the one which says:
These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.
I would have thought, in fact, that the effect of this amendment of the Constitution is to enable us to exercise our powers of government under this particular section in order to devolve certain functions to other bodies on our behalf. I would have thought that membership of the Community is compatible with Article 6.2 but I recognise a doubt on this point and I think the doubt should be cleared up.
Deputy Keating on Article 10 left me cold. I have read it three times and I cannot find out what was the point he was making in his reference to the Coal and Steel Community.
Article 15.2.1 is an important one:
The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas; no other legislative authority has power to make laws for the State.
I think it is necessary to amend that.
I may be wrong but I think certainly one would have to have regard to that because, in fact, the EEC system of regulations involves legislating for this country. We would be sharing our legislative power with a legislative body which at this moment is the Council of Ministers, that is, the ministers of Governments democratically elected by member States. It is an indirect system of democracy, too indirect, in my view unsatisfactory, and one which when we join I hope we will seek to improve and will have the support of all parties in this House in seeking to improve. It cannot, however, be described as undemocratic when the body which will be legislating will be members of Governments elected democratically by the parliaments of member States themselves elected democratically. It is democracy, even if it is indirect democracy, but I can see a need to concern ourselves with that particular Article of the Constitution as we shall be sharing that particular power.
Article 15.6.1º has been mentioned:
The right to raise and maintain military or armed forces is vested exclusively in the Oireachtas.
Of course, there is nothing whatever, as I shall refer to later, in this Bill or anything being done under it which in any way affects that and I think that one thing that could come usefully from this debate is an end to the spurious talk about neutrality and defence which I admit has not been helped by some unfortunate remarks by Government spokesmen.
Article 28.3.1º is the next one that I have a reference to:
War shall not be declared and the State shall not participate in any war save with the assent of Dáil Éireann.
The same thing applies here. That is utterly irrelevant to the matters we are dealing with.
Article 29.5.1º says:
Every international agreement to which the State becomes a party shall be laid before Dáil Éireann.
Clause 2º is:
The State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann.
Depending upon how the legislation works, it may well be necessary to cover that particular amendment. But the fact that I think some of these are necessary and that Deputy Keating thinks others are necessary and somebody else may get up yet and mention another one that neither of us has mentioned, shows the futility of attempting to legislate by naming particular Articles, the futility and the danger of it, the danger of frustrating the wishes of our people if we adopt that technique. That method is out.
I have said that the second method involving a general phraseology about an economic community, joining economic communities or involving ourselves in economic co-operation is unwisely wide. We are left, therefore, with the Government's proposal. Let us consider the specific wording of it. The crucial wording which everybody is directing his attention to is the wording which involves the words "consequent on membership of the Communities":
No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State consequent on membership of the Communities.
I am sure you can argue this both ways. I have not heard the full debate. Arguments may have been made that "consequent on membership" has a narrower meaning than that which this side of the House is attributing to it. I do not mind how much argument there can be. The fact is it is arguable and I think the weight of argument is on our side but if only an ounce of argument was on our side, not the whole weight of it, it would be vitally necessary to change this. It would be intolerable if any Government in this House were permitted to override the Constitution at their whim by simply introducing a Bill: Licensing Laws (Consequential on EEC) Bill, 1982 and deciding to extend the licensing laws because they do not have any controls in France as to what time pubs close, not that that is a constitutional matter; I am taking a bad example. But, the idea of any Government simply adding in the words, "Consequential on EEC Membership" to the Title of an Act, whether or not it was required by EEC membership, and would be able to override the Constitution, is intolerable and in so far as any doubt exists on that and, at the very mini-mum, a doubt exists, a grave doubt to my mind, those words must go. We should do no more than is necessary is to ensure that, in so far as any legislation by this Government is necessitated by the obligations of membership, that legislation is not incompatible with the Constitution. If we can ensure that and no more than that, we are doing our job. We must not widen it beyond that and must not make it possible for this Government or any other Government to use the excuse of the EEC membership to override the Constitution in matters where it is not necessary. I do not think anybody can argue that in confining it in this way, in proposing this change of words, we are doing anything incompatible with the requirements of the Treaties of the Communities. I do not think it is conceivable in any sense that if the wording is changed here and the Government go back to Brussels with this, they could be told: "Oh no, this does not satisfy our needs" because clearly, by definition, the Community cannot demand of us more than that we do those things necessitated by the obligations of membership.
So that, proposing this amendment which I think there can be no question about—that it is necessary is evident—will not in any way prejudice our membership or create a situation where the Community would suggest that they are dissatisfied and will not accept our constitutional amendment. That I think cannot happen. This amendment, therefore, is one that must go through. There can be no argument against it. On that we have to insist.
There is another amendment which I think we will be putting down also to line 11. It relates to the ability of the Community to legislate directly for this country. That is an integral part of the Community. In joining it we have to accept that. There are limitations on this which I shall mention in a moment, limitations which have not been mentioned in this House and to which attention should be drawn. At least, I do not think they were mentioned. This power exists within appropriate limits. It is important that we make it clear again that the only cases where our Constitution can be overridden must be cases where the Community legislates but legislates in accordance with the Treaties.
It is conceivable, at least, that the Council of Ministers of the Community may at some stage in the future purport to legislate by way of regulation in respect of some matter which, in fact, does not arise from its Treaties and is not required by or derived from these Treaties. They might act, in other words, in a manner ultra vires the three Treaties. Now that is something which can, of course, be challenged in the European Court of Justice, but it is also something against which, apart from that challenge, we must secure ourselves. Our courts must be entitled to say whether or not any act or regulation of the Community is or is not pursuant to the Treaties. They must be entitled to deal with this matter. They may have to refer the matter of interpretation to the European Court, but they must be entitled to deal with this matter of whether or not any regulation of the Council of Ministers is, in fact, pursuant to the Treaties; if it is not, it must be possible to challenge it in our courts, the point of interpretation being referred to the European Court of Justice and, in the light of that interpretation, the decision being rendered by our courts.
Our courts are not to be overridden, as some people suggested; our courts will continue to deal with cases, all the cases they deal with now but, if a point of interpretation of the Treaties arises, they must, of course, refer that to the European Court of Justice.
I think we should put in there the words "pursuant to the Treaties". It may be tautologous. It may be argued that they are not necessary, but they will certainly do not harm and, in certain circumstances, they could do good. It is wrong that there should be any possibility of the Council of Ministers legislating for this country by way of regulation other than in accordance with and pursuant to the Treaties and arising out of the Treaties. On this particular point I want to draw the attention of the House to Article 235. It is a very important Article in the Treaty. It is one which opens up powers of legislation to the Community and it also closes up. Others may draw attention to the opening up aspect. I want to draw attention to that and also to the closing up aspect. Article 235 says that if any action by the Community appears necessary to achieve in the functioning of the Common Market one of the aims of the Communities in cases where this Treaty has not provided for the requisite powers of action, the Council, acting by means of a unanimous vote —we will, of course, have the right of veto here—on the proposal of the Commission, and after the Assembly has been consulted, will enact the appropriate provisions. This is a power of degenerate legislation to cover any point that may have been omitted anywhere in the Treaty. To some degree it is open-ended. It is important that the attention of the House should be directed to this because it opens up the possibility of legislation beyond what may appear to arise directly from the wording of the Treaty.
There are two points to note. The first is that this can only be done unanimously. Our Government can, therefore, veto it. The second is that, even if our Government failed to veto it, and if some Government here, such as this Government, launched us into some commitment which runs outside the aims of these Treaties, even if our Government agreed to it, that particular legislation would fall. It would not be valid under Article 235 and we would be entitled in our High Court and in our Supreme Court to deal with the matter and to take action in regard to it because the only legislation possible under Article 235 is legislation to achieve one of the aims of the Community and these aims are spelt out. They are spelt out in Article 2, which says it shall be the aim of the Community, by establishing a Common Market and progressively approximating the economic policies of member states, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increased stability, an accelerated raising of the standard of living and closer relations between member states. Is there anybody on the Labour benches who is against any of these perfectly laudable objectives? It is only these things that this Treaty can deal with, either in the explicit requirements of the Treaty or in the broader context of Article 235. To talk about neutrality and defence in that context is clearly nonsense. Any attempt to apply this Treaty to any matter of that kind would be ultra vires and would be so found by our Supreme Court and by the European Court of Justice.
