EU MEMBERSHIP, Implications of – 25-Apr-1967 CAB129Legal
Greg Lance – Watkins
EU MEMBERSHIP – IMPLICATIONS of – 25-Apr-1967 – CAB129Legal
(c) crown copyright Catalogue Reference: CAB/129/129 Image Reference: 0012
(THIS DOCUMENT IS THE PROPERTY OF HER BRITANNIC MAJESTY‘S GOVERNMENT) C(67) 62 COPY”NO. 0
25th A p r i l , 1967 CABINET LEGAL AND CONSTITUTIONAL IMPLICATIONS OF UNITED KINGDOM MEMBERSHIP OF THE EUROPEAN COMMUNITY
Memorandum by the Law Officers As requested by the Cabinet (CC(67) 21st Conclusions , Minute 3), we have considered the Report by officials attached to E (66) 7, and have the following comments on the legal and constitutional implications discussed there in.
Implementation of the Treaties
2. The preparation and passing of the Acts implementing the Treaties would be a major legislative operation.
We would be faced with the task of unravelling the categories of Community law which have direct internal effect and which would require to be incorporated into the law of th e United Kingdom.
There would also be need to amend a considerable body of our existing Acts .
But these are problems which could be overcome.
Sovereignty of Parliament
3. British constitutional doctrine is that Parliament is sovereign and that no Parliament can preclude its successors from changing the law.
It is, however, implicit in acceptance of the Treaties that the United Kingdom will not only accept existing Community law, but also will refrain from enacting future legislation inconsistent with Community law.
This requirement thus detracts from Parliamentary sovereignty Such a restraint on our legislative system would not, however, be unprecedented.
Our legislation often takes account of Treaty obligations (for example, the Charter of the United Nations, North Atlantic Treaty Organisation, the General Agreement on Tariffs and Trade, the Ottawa Agreements of 1932), which restrict our future legislative freedom.
Further, several Acts of Parliament have reduced for all time vast territorial areas of our sovereignty (the various Acts of Independence granted to India, etc.).
However, the continuing incidence of future Community legislation would be without precedent and would presentus with continuing legislative and constitutional problems.
Not only would Parliament have to refrain from enacting future legislation inconsistent with Community law, but future Community law would have to be accepted as binding on us .
The United Kingdom Parliament could pass legislation enacting that Community law should prevail over United Kingdom law if any conflict arose but there is in theory no constitutional means available to us to make it certain that no future Parliament would enact legislation in conflict with Community law.
In our opinion, if Parliament did in future enact such legislation expressly contradicting Community law, the Courts would apply that legislation, despite its repugnance to Community law.
However, we think that this theoretical possibility could, in practice, arise on a matter of importance affecting the Community, only in political conditions in which the United Kingdom had in any case decided to break with the Community.
The risk of inadvertent contradiction between future United Kingdom and Community law will not be great.
After we join the Community, we shall be taking part in the preparation and enactment of all future Community law.
Our participation would thus enable us to reduce the likelihood of incompatibility between the Community law and our domestic law.
Character of the Community Law
4. Community law has little direct effect on the ordinary life of private citizens, their rights and obligations.
By far the greater part of our domestic law will remain unchanged.
Nothing in the Treaties touches our criminal law, matrimonial law, law of inheritance, land law, the law of tort, or negligence, or contract (save inrelation to restrictive practices), the relations of landlord and tenant, housing or town and country planning.
Direct taxation would not be affected.
Nor is there any reason to expect the creation of future Community law in these fields, for the power of the Community to create new law is limited to the purposes set out in the Treaties which cannot be enlarged except by unanimous agreement.
The main impact of Community law would be in the realms of trade, customs, restrictive practices and immigration.
It would also affect the operation of the iron and coal industries.
5. We understand that there would undoubtedly be a British Judge (and perhaps a British Advocate General) at the European Court! we regard this as an important safeguard.
We agree that it would be quite possible to assimilate Community law and rulings of the European Court in to our own systems.
We consider that the United Kingdom Courts would be likely to refuse to hold that Parliament had by implication repealed or amended any part of Community law.
But if Parliament were to pass an Act expressly derogating from Community law, we consider that the United Kingdom Courts would regard themselves as bound to give effect to the Act even though this involved a breach of the Treaties.
Safeguards for the Protection of Individuals
6. We regard it as important that there is a right of appeal to the European Court, which we believe to be a Court of high standards, from Community decisions which affectindividuals and corporate bodies.
We consider that the various powers of the Commission to authorise its inspectors to enter premises, inspect books and interrogate persons is acceptable, provided that such powers are not normally exercised in this country without an order made by a United Kingdom Court.
7. The requirements under the Treaties would restrict our independence of action in future international dealings, and would, broadly speaking, have the effect of transferring to Community institutions our power of concluding treaties on tariff and commercial matters.
We consider that this would be an inevitable and acceptable consequence of our acceding to the Treaties.
As a matter of international law, we would have no right to withdraw from the Treaties unless there was a fundamental change in circumstances (e.g. if one of the member States were over–run by a foreign power).
We regard this as somewhat academic; if for any reason, the United Kingdom decided to withdraw, and an Act of Parliament were passed for this purpose, we find it difficult to imagine that our Courts would not give effect to it.
Withdrawal from the Treaties would certainly be an immensely complex operation.
The Law Officers 1 Department, W.C.2 ..
25th April, 1967 SECRET
Secret as this document may have been it is clear that Enoch Powell in his speech in the House of Commons debate on 25-Feb-1970 CLICK HERE had deduced and laid out the facts for the British peoples prior to the Referendum on the ratification of The Treaty of Rome!
It is clear with hindsight that the Government of the day, together with their EC allies set out to use FUD (Fear, Uncertainty & Doubt) to oppose those who wished to Leave_The_EU, or more accurately did not wiash to ratify the Treaty, playing largely on the lack of leadership of the NO Vote, their underfunding and the fact they were beset by squabbling and the egos of a few small minded individuals who, with hindsight, can be seen to have cost Britain and the peoples of Britain their liberty, independence and sovereignty through a so called democratic proces which was riddled with corruption.
Sadly, with the benefit of that hind sight we can see the same sad situation mapping out once again in the lead up to the promised referendum of 2017!
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