Skip to main content

Transport (Carriage Of Goods)

Volume 931: debated on Wednesday 4 May 1977

The text on this page has been created from Hansard archive content, it may contain typographical errors.

9.57 p.m.

I beg to move,

That this House takes note of the Carriage of Goods (Prohibition of Discrimination) Regulations 1977 (S.I., 1977, No. 276) dated 21st February 1977, a copy of which was laid before this House on 2nd March.
I am sorry that the object of my first appearance at this illustrious Front Bench is to deal with the implementation of regulations for which there is no cause in the United Kingdom. However, I hope that the Under-Secretary of State and some of my hon. Friends will agree that there is ample reason for the debate and that certain lessons can be learned because the EEC legislation with which we are concerned shows that we must be on our guard when we deal with other items of EEC legislation pertaining to this country which, unless we are careful, may result in all sorts of unfortunate provisions being passed under our noses.

The reasons for the Prayer stem from the Fourteenth Report of the Joint Committee on Statutory Instruments, which is chaired by my right hon. Friend the Member for Crosby (Mr. Page). Paragraph 5 of the report draws the special attention of both Houses to these regulations. I should refer briefly to the reasoning on these regulations behind the Fourteenth Report. They are twofold. There are two basic reasons for our debating these matters tonight. We are dealing with something that is very important in principle, in that we are legislating by reference to an EEC regulation. Our own instrument is, in every way, leaning over backwards to put over the responsibility, and its whole expression emphasises the fact that it is a straight implementation of the EEC regulation. That regulation is demanding, and it is allowed to lay down all the principles with which we are dealing tonight.

It being Ten o'clock, Mr. Deputy Speaker interrupted the Business.


That the motion relating to the Carriage of Goods (Prohibition of Discrimination) Regulations 1977 may be proceeded with at this day's sitting, though opposed, until half-past Eleven o'clock.—[Mrs. Ann Taylor.]

In dealing with these matters I quote from paragraph 5 of the Fourteenth report of the Scrutiny Committee, dealing with this.

"The requirements of the EEC Regulation are not themselves set out in the instrument; and the new offences created by the instrument are therefore defined by reference to the EEC Regulation, which is directly applicable throughout the Community and has been in force in the United Kingdom since 1st October 1973."
The paragraph ends with this quote:
"Instruments of this sort, providing for the enforcement of Community requirements merely by reference to the relevant Community documents, are therefore likely to become quite common; but the Committee decided that the novelty of the procedure was such as to justify them drawing this instrument to the attention of the House."
It really goes much further than the instrument and this regulation. It appears that this will increasingly become the case if we fall into the pattern whereby we are merely implementing distant regulations emanating from Brussels. If this is so, it is important that we keep a careful eye on them at the outset in Brussels and watch them carefully in this House.

I pay tribute to the Scrutiny Committee and the way in which it questioned the Under-Secretary's Department. That was extremely commendable, as many things came to light which would not otherwise have been thought of by hon. Members. The second point the Committee made was in relation to regulation No. 8 (2) which reads—and I emphasise that this is our drafting rather than that of the EEC—
"a person guilty of an offence under Regulation 8 (1) shall be liable on summary conviction to a fine not exceeding £400 or on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both".
That is not exactly precise drafting, and I say that with respect. Normally in English courts or in British proceedings generally the construction placed on that would have been a fine not exceeding £400 on summary conviction and an unlimited fine on indictment. This is a valid point to make, and unfortunately this is the drafting that has been laid before the House and we are stuck with it. The drafting indicates that the fine is unlimited, but the saving grace is that the European Communities Act limits the fine to £400 and any court would interpret it as meaning a limit of £400. Nevertheless, this is a potential or apparent error and the Committee drew the attention of the House to it. It is right that I should do the same thing.

I want to put certain specific points to the Minister. The regulation does not apply to this country and that underlines the validity of my first point dealing with the implementation of the regulation. The regulation came into force on 1st October 1973. We wonder why we need this regulation at all. It having come into force in October 1973 we find now that for some curious reason we are debating it eventually in May 1977. A memorandum was placed before the Scrutiny Committee by the Transport Ministry. Paragraph 3 deals first with the fact that the regulations came into force on 1st October 1973 and says:
"It is a Community obligation to supplement its provisions by making enforcement regulations. It was because of the difficulties in reaching agreement with the Commission on the shape of these regulations that it is only now that the regulations are made."
It becomes apparent later in the proceedings that this is one of the reasons for the delay. I put it to the Under-Secretary that it seems remarkable that in these regulations—not the subject of great partisan dispute—concerning something which we hardly need as a nation, there should be a delay from 1973 to 1977
"because of the difficulties in reaching agreement with the Commission."
I shudder to think, if we have difficulties with the Commission over something like this, of the sort of difficulties we shall encounter when we are trying to implement something that has an effect within this country. I would appreciate the Under-Secretary telling us whether his Department receives responses worthy of whatever regulations we are dealing with in communications with the Commission. I suggest that this response is remarkable if it be the reason for the delay. If there is some other reason perhaps he would mention it.

There are three specific points I wish to put. The first concerns Article 5 of the Community regulations which deals with the scope of the EEC regulation and what has to be notified by carriers to the Governments—what their liabilities are under these regulations. Article 5 is different from our own Instrument. It says that transport undertakings shall notify their Governments forthwith of measures to which the regulations apply. The operative word is "forthwith". Incidentally, if this was ever to come before the European Court, it is the EEC regulation which would take priority. The same thing would apply under our own law because of our admission to the Community and because of the Communities Act. The point is that "forthwith" appears in the EEC regulation whereas our regulation says "within one month".

It is eminently reasonable that it should be within one month. We cannot introduce a regulation just like that and immediately enact the words forthwith. It would not make sense. The Joint Committee was told that this "liberty"—and that was the word used by a representative of the Under-Secretary's Department—was negotiated with the Commission. We are most interested to follow the fact that such "liberties" have to be negotiated with the Commission and take about four or five years to come to fruition.

My question is: what form does the Commission's permission take? If it is permitting us to vary our own implementation of an EEC regulation what form does it take? Is it word of mouth? Is it a letter or formal undertaking? Would it stand up if it was challenged in the European Court? In this instance I do not make any heavy point about these regulations. It is clear that the European Court would uphold us. There would be no question of any serious challenge over this liberty" of taking one month by way of carriers notifying Governments of their responsibility under this regulation.

I am concerned about other such legislation and the nature of the negotiations carried on between a Department of State in this country and Brussels which lead to a liberty being taken in our regulations as distinct from the EEC regulations and which, if the two were ever put to the test, would result in the EEC regulations taking priority. These are technical matters which I hope I am putting simply. They are of some concern to me and my hon. Friends—not because of this subject, although a valid point was taken in the Committee considering this instrument—but because of the many such regulations and consequent instruments that we shall have to consider in the not too distant future.

The second point arises on Article 5(2) and concerns something that was mentioned before the Joint Committee. There was considerable discussion and valid interrogation under the general heading of snooping, in the sense that the EEC article was so drafted that it tended to appear that carriers were obliged to inform their own Governments not only about their own responsibilities or infringements of the regulations, but about the responsibilities and infringements of others.

Article 5(2) states:
"Before 1 July 1961 transport undertakings shall supply their respective Governments with all relevant information concerning tariffs, and formal or other agreements",
and so on. There is no mention of any limitation on the information that transport undertakings have to supply. Therefore, it could easily be read as meaning that they have to make a more general notification which comes under the general heading of snoopers or snooping, and this was referred to in some detail before the Joint Committee.

I do not take the snooping point, because it is clear that that is not the intention of the article. The point that I want to take up is one of Community drafting because, looked at simply and in itself, what we have here is shaky drafting in a European Community article. The point emerged before the Joint Committee that once there is this shaky drafting the Minister's Department is obliged, in its regulation, largely to follow the EEC document and its drafting, and that has been done here.

I am not drawing any great point about these regulations, but if there is faulty Community drafting which we are obliged to follow in British law in the implementing regulations there could be all sorts of problems. I should be obliged if the Minister would tell the House what opportunity there is to scrutinise EEC drafting closely at source. I know that there is provision for that within the Community, but I see many problems arising unless we pay attention to these things at the outset.

If we do not get things right from the start, our own regulation will be faulty. The House will be bound by it, and we shall get mistakes creeping in. It will be too late to do anything about them without going back to the starting point of the Community and having new European legislation, and goodness knows the bureaucracy that that would entail.

My next point was not particularly touched on before the Joint Committee but came in somewhat as a sideline. It concerns the British operator abroad. It could be said that British freight transport is doing an outstanding job abroad, not least within the EEC itself, and it needs all the encouragement that we can give it.

I am glad to have the support of my hon. Friend the Member for Sutton Coldfield (Mr. Fowler) because he, having responsibility for transport, appreciates the rôle of the British lorry driver abroad. A driver who goes abroad to deliver a load may come within the regulations. These are complex regulations and it appears to me that if a driver were to collect a return load in Germany, where there are standard tariff rates—in other words, it all comes within the ambit of the regulations—and deliver it in France on his way home, he could come within the regulations.

We are dealing with something that will not receive a great deal of publicity. The point that arises here is of concern to us and to the Minister and his Department. The assurance that I am seeking is that the Minister is aware of the sort of situation that could arise and that his Department is in close touch with trade associations of the transport industry, not least the Road Haulage Association Ltd. A driver or carrier could come within the ambit of these regulations if he collected a load in Germany and deposited it in another country. He could find himself involved in all sorts of infringements. The driver and his employer should be fully informed of the situation before the former travels abroad.

As I have said, these regulations do not pose a great problem. One wonders why we are beset with them. One wonders about the long delay in bringing them here—if they are necessary. They have one lesson for us. They show a number of pitfalls for the future of which we must be aware. On behalf of the Opposition I expect that the Minister and his Department to be on their guard. They can rest assured that the House will be on its guard.

10.16 p.m.

It is unfortunate that the motion has appeared on the Order Paper without the note in italics saying that it has been studied by the Joint Committee on Statutory Instruments, that the Committee has reported to the House, taken evidence and drawn the attention of the House to certain matters in the order. My hon. Friend the Member for Leominster (Mr. Temple-Morris) has referred to those matters. The reason for that omission is probably that it is a "take note" debate rather than one on a Prayer or an affirmative resolution. That seems to represent a gap in our procedure. The note in italics has always assisted hon. Members to decide whether to turn up to hear what the Joint Committee has said about an order.

My hon. Friend the Member for Leominster said that the order does not apply to this country. It does not, to the extent that we do not apply discriminatory rates. But it obliges certain carriers to carry documents, even if those documents show that the order does not affect them. Although we do not apply discriminatory rates, the order does apply to this country. It is made under the European Communities Act 1972, Section 2 (2). This is the provision which introduces into our law all pre-accession regulations. Any regulations that were in force at the time this country joined the Community become part of the law of this land.

There is little that we could have done about the drafting of that regulation. There is not much that we can do about the drafting of new regulations. We have a Select Committee on European Legislation which studies proposals for directives and regulations. However, frequently the final regulation as enacted in Europe is not the same as the proposal which has been considered by our Select Committee. There may be many occasions when the drafting has gone through in Europe without this House—either the Chamber itself or a Select Committee—considering the actual draft.

I understand that in this case, because the regulation was drafted before we joined the Community and because we had no opportunity to consider the drafting of it, we can negotiate some modifications. The House should be clear about that. It was admitted in evidence that this order has taken such a long time to produce because of negotiations to modify the regulations. I do not know under what authority that is done or how this House could ever know that it has been done. It does not come before our Select Committee on European Legislation. Unless the Joint Committee on Statutory Instruments probes an instrument by means of receiving evidence from the Department concerned, this fact is never likely to come to light. We must know how the House can be kept informed of such negotiations and whether it has given away some rights of our citizens which the original regulation did not require. I do not say that that is the case here. In fact, the negotiations often resulted in a better provision for this country than the original regulation.

I am referring to Regulation No. 11 of 1960, as do these regulations. That is what first gave the Joint Committee some anxiety. The regulations create certain offences by reference to Regulation No. 11 of 1960, which appears in the interpretation regulation of this Statutory Instrument. We are told further on that any reference to "articles" means the articles of the principal regulation. Thus, the reader of these regulations needs to have EEC Regulation No. 11/60.

The draftsman of our regulations has done his best by including in brackets after the number of the article in the principal regulations a description of what it is about, but one still needs the original regulation. That is the point that the Joint Committee wished to take up with the Department.

It came as a shock to some of us to be informed by the witnesses:
"…it is made clear that we are not even allowed to reproduce in our own system of law—that is, in the framework of Regulations of this kind—any such provision"—
that is, any regulation directly applicable to this country. We were further told:
"A legislative measure under national law which reproduces the text of a directly applicable rule of Community law cannot in any way affect such direct applicability or the Court's jurisdiction under the Treaty."
We were referred to the case of Variola in the Reports of the European Court as 34 of 1973. I was so incredulous at that evidence that to inform myself the better I have obtained a copy of the case.

I obtained it after great diligence by the Library. It was not easy. Again, law is being enacted whose terms it is difficult to find. I quote from the reports of cases before the Court of Justice of the European Communities, 1973–77, page 997:
"…the regulations have direct effect—thus, mere reiteration of their provisions in the country's internal legislation is a pointless exercise. The technique of 'reproducing' Community law in a country's internal legislation, or even the procedure of 'reception' of Community law into the domestic laws of a country is not only superflous but also, according to previous decision, detrimental, for resort to such procedures can create ambiguity both as to the legal character of the provisions to be applied, and as to the date of their entry into force."
The six-point judgment on this is very forthright. The fifth point is that the direct effect of the Community provision in question prevents the application of any internal legislative provision, even if subsequent, that would be incompatible with these provisions. The final point of the judgment is that all provisions that may be adopted by national law to the same effect as any Community regulation are devoid of effect even if they are not more than simple repetition of the provisions of the EEC regulations.

I entirely agree with the witness that we are apparently not allowed by Community law to repeat regulations within our own regulations.

That leaves us in a difficult position. Anyone reading any of our Statutory Instruments that implements regulations—we are allowed to implement, but not to repeat—will have difficulty in knowing exactly what he must or must not do in order to avoid offending.

The House must refer to the original regulation. Changes may have been negotiated and I should not like to say whether if we put any of the negotiated changes into one of our Statutory Instruments that would be in accordance with or contrary to the Variola case. It seems to be contrary, and some of our Statutory Instruments may be ultra vires in regard to variations that have been negotiated. They would be ultra vires only on very small points, but they could be setting a precedent.

Let us suppose that there were negotiations to vary a regulation in some material way. How are we to know about them? Will they have effect in our law or will there be two laws that our citizens will be called upon to obey, namely, the original regulation and the regulation as altered by negotiation? These are the sort of difficulties presented to us by the order, and I am anxious that it should not become a precedent.

My hon. Friend the Member for Leominster also mentioned Regulation 8, which includes penalties of £400 on summary conviction and a term of imprisonment not exceeding two years, and a fine or both for conviction on indictment. Under our law, the second mention of a fine would mean a fine of any sum, but the draftsman of the order told the Joint Committee that he did not intend that. He intended a fine of up to only £400 as mentioned earlier. However, if that wording were in our law it would clearly mean a fine of any amount on conviction on indictment.

Under Schedule 2 of the European Communities Act 1972 we are not permitted to create a penalty for any offence against the provisions of that Act or regulations made under it exceeding £400 or £5 per day. I refer to Schedule 2, 1(1)(d) of the 1972 Act. Although the Committee in its Report said that the matter might be ultra vires, it was being a little kind to the draftsman. Looking at the matter again, I cannot help feeling that it must be ultra vires to use those words since they seem to me to be quite contrary to the provisions of the 1972 Act. The Minister will have to consider an amendment of that part of the order.

This is a difficult order to construe. The points we have raised in this debate may be comparatively small—they may be points in which the draftsman of our regulations has made the regulations of the Community more practical and more convenient—but this may be a precedent which could be used in future in much more serious matters.

10.31 p.m.

I wish to begin by congratulating my hon. Friend the Member for Leominster (Mr. Temple-Morris) on his maiden speech at the Dispatch Box. At one point I thought we were debating a Prayer. I had in mind to congratulate my hon. Friend on his maiden's prayer, and I wondered whether the Minister tonight might see himself as the answer to the maiden's prayer. But, although I know that the Minister will be most responsive, I doubt whether he will meet that description.

We are indebted to my right hon. Friend the Member for Crosby (Mr. Page) not only for his efforts which resulted in the Fourteenth Report of the Joint Committee on Statutory Instruments, but for the elaboration of some of those points in this debate. It is an important Report. It may be that the regulations which we are considering are minor and that they have little practical or immediate effect on the road haulage industry, but the Report brought out points of some significance.

The first point relates to the extension of the procedure of defining legislation by reference to an EEC regulation. The second point relates to the placing on record—and this is news to many of us—of the fact that member States are precluded from reproducing in their domestic law directly applicable Community regulations. Because of that fact we have to engage in this procedure of legislating by reference.

A further point made in the Fourteenth Report is that instruments providing for enforcement of Community requirements merely by reference to Community documents are likely to become common. But the Committee decided that the novelty of the procedure was such as to justify its members drawing this instrument to the attention of the House. I hope that this does not become common. I should have thought that in general terms it was regrettable to have legislation by reference which removes control to a certain extent one stage further away from this Chamber, but it is even more undesirable when one separates the penalties from the original legislation.

It would be helpful if the Minister could guide us on certain matters. For example, is it the case that the original regulations could be amended in such a way that, their being directly applicable, self-executing regulations, without any further enactment in this House, without any consideration of the penalty regulations, new offences could be created, but there would be no consideration of the penalties enacted by a quite different set of regulations? Also, perhaps an extension of the original regulations could render the statutory instrument enacted by this House to an extent ultra vires. It would be helpful to have guidance on that point.

I also think that one of the great merits of the Joint Committee in this respect is simply the question of clarification. I am sure that I was not the only person to find these regulations totally incomprehensible. It was only the work and scrutiny of the Joint Committee that rendered them rather more comprehensible. But, having begun to understand them, it then became difficult to understand why we had got ourselves tangled up in this spider's web at all, because basically it is clear that they have very little immediate practical effects in this country.

It is a spider's web, because we know that what we are talking about here results from, initially, a pre-accession commitment. These were regulations drawn up in 1960. They became effective in this country in 1973. They were imposed originally by regulations. We know that we cannot reproduce those regulations in our own legislation but, at the same time, we have an obligation to impose penalties to enforce that law. We are then compelled, therefore, to introduce regulations that apply penalties, enforcing the original regulations.

We are then told, however, that these regulations have little or no effect in this country anyway because we do not practice the system of extensive tariffs and price-fixing arrangements that applies on the Continent, and, therefore, the discriminatory practices that are banned by these regulations are not relevant to this country. Therefore, one could argue that the whole thing is an extraordinary waste of time.

However, I should like some comments from the Minister on that point because, as I understand the position, the system on the Continent—I think that it has been called "tariffication"—was imposed under EEC regulations. These were rules applying to all the original Six member States. I gather that on the Continent there is a very extensive system of price controls on intra-Community trade, and that freight carried between one country and another is subject to a very strict tariff system. The idea originally was to prevent discrimination, but, in fact, it prevents competition.

It is a system that is very much contrary to the practices adopted in this country. I think that most people would agree that it is a system that militates against efficiency and against the interests of the consumer and the efficient and economic movement of freight. But is was, nevertheless, a system imposed by Community law. I gather that when Britain joined the Community we were exempted, after negotiations, from the application of this system of "tariffication" to our freight movement.

What I should like to hear from the Minister—and this is most important, particularly in regard to these regulations—is whether that exemption is permanent. Are we permanently exempted from this system? If we are not permanently exempted, clearly the penalties referred to in these regulations could at some stage in the future have a very considerable practical effect on trade emanating from or coming to this country and carried by British hauliers. If the exemption is not permanent, what is the state of play about this exemption? Is the matter likely to arise again in the Council of Ministers in the next year or two, or is it just put off indefinitely? What is the legal position with regard to "tariffication"?

I move to the point made by my hon. Friend the Member for Leominster about the effect of these penalties on British hauliers who might be carrying a consignment of goods that may well have originated in Germany or France. Do the British penalties about which we are talking apply to British hauliers operating on the Continent as regards such a consignment, or would they be subject only to the penalties as applied by the country in which they happened to be travelling at the particular time?

It seems to me that at present we need have no fear about the regulations before us. It has, however, been invaluable for the House to look at yet another facet of the complexity of EEC regulations. It would be helpful to have some reassurance about the longer-term future of the controls to which these penalties relate, as applied to the whole of British haulage.

I hope that the Minister will respond on some of those points.

10.40 p.m.

The hon. Member for Faversham (Mr. Moate) wondered whether I was the answer to a maiden's prayer. I make no great claims in that respect. However, I remind the hon. Gentleman of the words of his right hon. Friend the Member for Yeovil (Mr. Peyton) on Second Reading of the abortive Bill dealing with bus licensing when he said that the minibus was not the answer to a stranded maiden's prayer. I should like the hon. Gentleman to bear those words in mind when he fulminates about the advantage of minibuses.

Following the debate on Monday, I notice that the Shadow spokesman on transport, the hon. Member for Sutton Coldfield (Mr. Fowler), has retired defeated and perhaps exhausted by his exertions and that others have leapt through the middle to take over his duties. I congratulate the hon. Member for Leominster (Mr. Temple-Morris), who also spoke in the debate on Monday and who is apparently still full of beans, on his stamina as well as his fluency on his first appearance at the Dispatch Box, and I commiserate with the hon. Member for Sutton Coldfield on his inability to sustain the pace. I know that we set a hot pace. We emerged triumphant on Monday, but I did not expect the hon. Gentleman to resign himself to defeat so rapidly. I hope again to deal successfully with the important points which have been made by right hon. and hon. Gentlemen opposite. However, before dealing with specific matters I should like to spend a little time setting some of the background to the regulations.

These regulations are required in order to supplement the provisions of EEC Regulation No. 11 of 1960. This EEC regulation was among the Community instruments which we accepted when we acceded to the Community and which were directly binding on us. In fact, it has been in operation in this country since 1st October 1973, but it has taken some time for us to agree with the Commission the form which our supplementary domestic legislation should take. I emphasise, as I shall explain later, the importance of the word "supplementary" in this respect.

The purpose of EEC Regulation 11/60 is to prohibit discrimination by carriers of goods which takes the form of charging different rates or imposing different conditions when the same goods are carried over the same transport links on the grounds of the country of origin or the country of destination of the goods. Indeed, prevention of discrimination of this kind was one of the fundamental objectives of the Treaty of Rome, as the hon. Member for Faversham rightly pointed out. Regulation 11/60 applies to the carriage of goods by road, rail and inland waterway throughout the Community. It was originally introduced in the Six against a background of tariffs fixed by national Governments which could have proved an obstacle to the development of a free market, which was one of the objectives of the Common Market.

I think that the hon. Member for Faversham, if I have understood him properly—I may not have done—misunderstood the point here. I understand that the tariffs were imposed by the national Governments and that Regulation 11/60 was designed in effect to eliminate them. Those tariffs never existed in this country and they do not exist here now. There is, therefore, no likelihood as he envisaged, of the EEC suggesting that we should follow a system of tariffication, because the tariffs were originally imposed by national Governments. I think that the hon. Gentleman got the wrong end of the stick, but it may be that I misunderstood his point.

The fact is that in this country rates are determined by the market, and there has never been any question of discrimination on grounds of national origin or destination. That is why these regulations are largely and always will be an academic exercise in this country.

The main provisions of Regulation 11/60 are designed to ensure that carriers keep adequate records of transactions so that cases of discrimination can be identified. It does this by requiring that a document giving full details of the consignment must accompany each load, and that carriers must keep records of, amongst other things, the full and final charges made. These records must be retained for a period of two years. The regulation also requires member States to introduce measures for checking that it is being complied with and to lay down appropriate penalties for non-compliance. These Community obligations, which, as I have said, we accepted on accession, are set out in Articles 14 and 16 of Regulation 11/60. They are fulfilled by the regulations we have been discussing tonight, which make it an offence not to inform the Secretary of State if discrimination should occur. Failure to carry a document giving details of the consignment and the charges for carriage is also an offence.

However, I should stress that there is no intention that carriers should be obliged to create new documentation. In most cases existing documents will, as it happens, contain all the required information. The industry is satisfied that its existing procedures adequately cover the case. There is no extra paper work flowing from the regulations.

As required by Regulation 11/60, provision has been made to enable these records to be checked by examiners appointed by the Secretary of State. Under Regulation 11/60 the Commission may ask for information to be supplied to it, but under our domestic regulations it may not be given without the approval of the Secretary of State, and any information obtained in this way is, of course, confidential.

The hon. Member for Leominster asked about the use of the word "forthwith" and the EEC granting us liberty not to interpret it as meaning literally "instantaneously" but to apply the regulation after a month or so. He asked what form the agreement took. It takes the form of an exchange of letters. This would be considered adequate for the purpose.

Are the letters ever brought before the House in any form, or put before the Select Committee on European Legislation, &c., to say that we have indeed altered the law of this country by this means?

Not to my knowledge. If it turns out that they have been shown to the Scrutiny Committee, I shall inform the right hon. Gentleman, but to my knowledge they have not.

How is any member of the public, a legal adviser, or the court to know whether the change has been made?

There could be millions of letters inside the Department of Transport, but they do not change the law of the land in the normal way, except in this draft situation of the European Community. We cannot have the law made in secret, without people knowing that it is the law.

If that exchange of letters is changing the law of England, as I understand from what is being said—and I do not understand it very well—people must know about it. If those exchanges are being made, not intentionally secretly but in such a manner that nobody can know—whether a member of the public who may be affected, a legal adviser who may be giving advice, or the court—how on earth can the law be applied? How is the court supposed to know about that exchange of letters?

The law is not being changed in this respect. The point of time at which the regulations come into effect is being changed. That is all. That is not changing the law.

It is changing the point at which the law begins to take effect. We are arguing about the use of the word "forthwith". We have been accorded the liberty of interpreting the word—and it is a matter of interpretation—so that it means a month, which is the common practice in this country, rather than immediately, which is the common practice in the EEC. Therefore, contrary to my hon. Friend's opinion, it is in accord with our legal custom and practice that this regulation is taking effect when it does. There is no question of changing the law in this respect.

I suggest that there is a question of changing the law. In our domestic legislation the point at which a piece of law comes into force is stated and has to be stated in the statute, Statutory Instrument, or whatever it is, and that is part of the law. It provides that this offence shall exist but that it shall exist from 1st January 1976, or whatever the date may be. That second provision is just as much part of the law as the first. Imagine the situation that would arise if we created a new offence and said to the public "We shall not tell you when it becomes an offence, but we have an agreement about that inside the Department of Transport". It is absolutely potty.

Have the courts been informed that this meaning is to be attached to this word? My hon. Friend says that the agreed meaning is to be the meaning which would naturally occur in British courts and British practice. But I always understood that the whole point of direct implementation of Community law was that Community law should be interpreted in accordance not with British practices but with Community practices and precedents. Here we have apparently agreed, in effect by a treaty, that our interpretation will prevail, but no one has been told. That situation cannot be tolerable.

My hon. Friend will recall that the hon. Member for Leominster raised this matter. It is not being kept secret. I think that my hon. Friend is on to a wrong point. However, it is rather complicated and technical and, if my hon. Friend is unhappy about it, I will go into it further and write to him about it. I think that he is making a mountain out of a molehill. I defer to my hon. Friend's concern about it. I think that it is a matter about which we could go on for a long time, but he is on to a wrong point.

Perhaps I may deal with what I take to be, subject to my hon. Friend's intervention, the more important point which the right hon. Member for Crosby (Mr. Page) and the hon. Member for Leominster raised. They asked whether Regulation 8 (2) was not defective or at least ambiguously worded. I am glad that this matter has been raised, because it gives me an opportunity to clear up a misunderstanding which arose as a result of the evidence given to the Scrutiny Committee. The Joint Committee on Statutory Instruments concluded, as a result of the evidence of the draftsman, that Regulation 8 (2) was possibly defective in that it was not clear that it reflected the draftsman's original intention.

Regulation 8 (2) provides that a person guilty of an offence under Regulation 8 (1), that is, of making a false statement which he knows to be false when supplying or furnishing information to the Secretary of State
"shall be liable on summary conviction to a fine not exceeding £400 or on conviction on indictment to imprisonment for a term not exceeding 2 years or a fine or both."
The wording implies that the fine on indictment is unlimited. I am advised that the provision is intra vires and perfectly permissible as drafted and, moreover, that it reflects the intention of the draftsman. The intention was always that the fine should be unlimited, and the draftsman advised the Committee wrongly. He was reflecting on a series of negotiations which had taken place three or four years ago and said, off the cuff, that he thought the intention was to limit this to £400.

The intention always was that the fine should be unlimited in this situation. I am glad to be able to clear up this misunderstanding. There was no difference between the original intention of the draftsman and the words as they have finally appeared. I hope that that helps to explain the possible discrepancy between the draftsman's intention as stated to the Committee and the situation as we find it in the regulation.

Is not this entirely in breach of Paragraph 1(1)(d) of Schedule 2 of the European Communities Act 1972, which says that any law which we pass in this country shall not include power

"to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction for more than three months or with a fine of more than £400 (if not calculated on a daily basis) or with a fine of more than £5 a day."
Surely, from what the right hon. Gentleman is saying, the regulation is entirely in breach of that provision.

As the right hon. Gentleman says, these regulations are made under Section 2(4) of the European Communities Act, which says:

"The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament…"
The only limits or restrictions relevant to punishment imposed by paragraph 1(1)(d) of Schedule 2 are that imprisonment must be for no more than two years on indictment or three months on summary conviction and that a fine imposed on summary conviction must not exceed £400. Fines on indictment are there left within the scope of Section 2(4) of the European Communities Act, which imposes no limitation.

In other words, this provision is within the scope of the Act, as the Act says that there may be no limitation on fines. It is not ultra vires but intra vires, and it is all perfectly logical. I apologise that the right hon. Gentleman may have been misled by the mistake of the draftsman into thinking that this was subject to a £400 limit when he gave his evidence.

I am grateful that the hon. Gentleman has corrected the facts with regard to the evidence of the draftsmen. But I cannot see where in the 1972 Act what I have read in the Schedule is overruled. It seems so clear in its wording. Is the hon. Gentleman saying that this is another matter of negotiation by letter between this country and the rest of Europe? There was a suggestion that we were fixing penalties which would be the same throughout the Community.

No. It is the Act as it is on the statute book. I think that the right hon. Gentleman is perhaps misinterpreting it. My information is that on indictment fines are unlimited. That is the case in the 1972 Act. It was the original intention under these regulations, and the only mistake has been that of the draftsman in saying at one point that it was the intention to fix a limit of £400. I hope that this explanation clears up the situation. Perhaps I may write to the right hon. Gentleman if he still feels that there is some misunderstanding.

I turn now to the question of delay in making the regulations. The simple fact is that because these regulations do not have any effect in this country, as the practices with which they are concerned do not take place here, they were not given high priority in the Commission's activities. The hon. Member for Leominster asked, in effect," If this is how we proceed with something unimportant and we have to have a lot of consultation about it, how do we proceed with things that really matter to us?" We are used to rather lengthy delays with regard to Community regulations, but if they had greater effect, no doubt the negotiations would have proceeded more quickly.

These are not changes in the underlying regulations, which remain the same. They are imposed in toto on the British situation. These are supplementary regulations which merely relate to the fines and to the question of access and information enabling the underlying regulations to be put into effect here.

There is, therefore, no possibility of the underlying regulations being changed without Parliament being party to it. These regulations were in being in the Community when we became members of it and as such they apply to this country. The regulations are simply supplementary and do not change or affect the underlying regulations. That is why there need be no conflict between these regulations and the underlying principles which the right hon. Member for Crosby mentioned when discussing the Italian judgment.

The question why regulations such as these cannot be reproduced in our domestic legislation has been raised. If they were to be incorporated in domestic legislation, it would be possible for this House to vary them, to put a gloss on them, to insert the odd word here or there or change them in a way which would defeat the whole object of uniformity. I am informed that this would also affect the interpretative rôle of the European Court. For those reasons, it would not be right to re-enact the regulations word by word in national legislation. It is perfectly satisfactory to do what we are doing.

The hon. Member for Leominster said that we had not been here before. We may have been here before. Perhaps some of the agriculture regulations may have been in the form of these regulations. Nevertheless, we are facing a pretty novel situation, and we shall face it more often as underlying regulations are supplemented by regulations which put them into force in this country.

We are grateful to the Scrutiny Committee for going into the matter and for pointing out the importance and danger of the situation. This has been a valuable debate which has cleared up a number of misunderstandings which arose perhaps from the novelty of the situation. I hope that the explanations and assurances I have given satisfy the House.

Question put and agreed to.


That this House takes note of the Carriage of Goods (Prohibition of Discrimination) Regulations 1977 (S.I., 1977, No. 276) dated 21st February 1977, a copy of which was laid before this House on 2nd March.