House of Commons Hansard Debates for 11 Mar 1993

Mr. Hugh Dykes (Harrow, East) : Is not that a wholly different union? I cannot understand why my hon. Friend is comparing the two structures and concepts. Is he not reassured by the common provisions in article F(1), which clearly states :

"The Union"--

completely different from the English and Scottish Union "shall respect the national identity of its Member States, whose systems of government are founded on the principles of democracy."?

Mr. Walker : My hon. Friend is trying to tempt me into an argument. Three hundred years ago, it would have been nonsense to talk about democracy as we know it today. One must study the treaty of Union of 1707 in the circumstances in which it arose. I have read it and I invite my hon. Friend to do the same. I do not want to bore the Committee, so I shall not give details of all 25 articles in the treaty of 1707. [Interruption.] Let me make it clear that, north of the border, my comments are considered to be important. If my hon. Friends do not think so, I remind them of the stand taken by my right hon. Friends the Secretary of State for Scotland and the Prime Minister during the general election. They spoke about union, and

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made no qualifications. They accepted the 25 articles in the treaty of 1707 and the powers that those articles bestowed on them. I shall draw the Committee's attention to the similarities between the powers of the treaty of 1707 and those contained in this treaty, especially those in article 3b.

Sir Teddy Taylor : Will my hon. Friend be fair to my hon. Friend the Member for Harrow, East (Mr. Dykes) and confirm that the Union with Scotland allowed the Scottish people to keep their own £1 note, in exactly the same way that, as a result of the triumph at Maastricht, we shall be able to keep a separate British £1 note? However, will he make it clear to him that having a Scottish £1 note does not mean that the people of Scotland have control over their economic and monetary policy?

Mr. Walker : Exactly, but I do not want to digress into such matters. I am always delighted to debate the details and technicalities involved in the Act of Union between Scotland and England. I have read that treaty, just as I have read the Maastricht treaty. I understand both where I can or where it is legally possible to understand. When I have asked people for legal advice, most have been unable to tell me what the Maastricht treaty means.

I was referring to the White Paper. In response to a question on Tuesday, my right hon. Friend the Secretary of State for Scotland said :

"I am grateful for my hon. Friend's welcome for my announcement. The number of seats in the House derives form the Act of Union, which guaranteed Scotland a certain number of seats. However, I entirely agree that it is high time the boundary commissioners got down to work on the relative size of constituencies."--[ Official Report, 9 March 1993 ; Vol. 220, c. 796.]

That is important if we bear in mind what is happening to European constituencies, which is why I draw the Committee's attention to it. He also said :

"The Act of Union of 1707--

Mr. Devlin : It is not in the treaty.

Mr. Walker : I know what is in the Act of Union. My hon. Friend the Member for Stockton, South (Mr. Devlin) should not get into an argument with me about it. He should go to the Library and get a copy of the amended Act of Union. I suggest that he goes to the Scottish library and gets a copy of the Act of Union, which was passed in Scotland, accepted by this Parliament and subsequently amended. The important issue is the 25 articles in the original Act which were accepted. My hon. Friend has not read them.

The Secretary of State for Scotland also said :

"The Act of Union of 1707 secured for the Scottish people a strong and special place within the United Kingdom. It guaranteed the continuance of Scotland's separate legal, educational and local government systems."--[ Official Report, 9 March 1993 ; Vol. 220, c. 787.]

5.30 pm

I remind the Committee that article 3b says :

"Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty."

I submit that the creation of one parliament in 1707 and the articles of that treaty, which provided for a free trade area and economic and fiscal union, combined with full political and economic union, were much the same objectives as those contained in the treaty of union which we are debating today.

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My right hon. Friend the Foreign Secretary said that the Single European Act presented problems with the legal reach of that treaty. During the passage of that Act, I asked about the definition of ever closer union.

Mr. Devlin : Could my hon. Friend explain why he thinks that the Act of Union has been good for Scotland and why a further Act of Union would not be good for Britain?

Mr. Walker : If we put it to the people and they said that they wanted it, I would accept that, because I am a democrat. I have never made my position on that uncertain. The comparisons are odious in that one is being told that we are getting certain things built into a treaty which others, who are better equipped legally to analyse such things, tell me is legal gobbledygook. Surely, I, as a Scottish Member of Parliament, have every right to protect the interests of the Scots, who joined the 1707 Union which was profitable for both parties, because that union is being changed by this union. My hon. Friend the Member for Wycombe (Mr. Whitney) shakes his head. He should tell me that when Scotland separates from the rest of the United Kingdom. I am determined to maintain the Union.

I must draw attention to the probable hazards because we must accept that there will be a backlash if we sell a prospectus which does not live up to the sales pitch. On 23 April, 1986, I said : "My right hon. Friend will be aware that union means something north of the border, and certainly in Northern Ireland ; it is something we care deeply about. This afternoon an explanation was given why it was right to call the European Assembly a Parliament. Would it not be correct to assume that, if we continue to use the word union' in the way it has been used and is being used, we Scots will be justified in thinking that the word means union as we understand it?"--[ Official Report, 23 April 1986 ; Vol. 96, c. 334-335.]

At that time, I was told that I was wrong, but today we know that I was right. I also said :

"The hon. Gentleman will be aware that I have been in my place from the moment that the debate began and that I have not been called to participate in it. He will be aware also that, being a unionist, union means something to me. But if talk about union within Europe is in the same context as union in Scotland, even the hon. Gentleman will understand that that is not quite what we in Scotland believe should happen."--[ Official Report, 23 April 1986 ; Vol. 96, c. 383.]

I draw attention to that because there is a suggestion in some quarters that one is being disloyal.

I have demonstrated that subsidiarity as contained in the union treaty can and will give powers to European institutions which are not dissimilar to those contained in the 1707 Act of Union. Consequently, it is wrong to claim that the current evidence from the Community is against centralisation or ever closer union. The evidence on air service agreements is testimony to the movement of decision making and negotiations from the United Kingdom Government to European bureaucrats.

We know that, on the past record of the European Court of Justice, it will decide in favour of the treaty's objectives. Community institutions will use the union objective powers as contained in article 3, just as my right hon. Friend the Prime Minister and former United Kingdom Prime Ministers have used the powers contained in the 1707 Act. The objectives and articles in that Act are not dissimilar to those contained in the European treaty of union.

It is not good enough for my right hon. Friend the Foreign Secretary to say that attitudes have changed. The

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bureaucrats are still in place. New centralising politicians can and probably will emerge. We will not always have my able and talented right hon. Friend to protect our interests, and that aspect worries me.

Subsidiarity, as contained in article 3b and defined at Edinburgh and Birmingham, will not reduce or remove the centralising powers of the treaty of Rome, the Single European Act and the treaty of Union. At best, it is unwise to leave such powers to future politicians. At worst, it is foolhardy to hand over such powers without the full-hearted consent of the people. Next year or 10 years from now, it will be too late and our children and our children's children will not thank us for giving away their power to change the law within the United Kingdom by voting out a Government with whom they are unhappy or changing the incumbent Government's attitude to a specific policy.

Every week in the House, we hear Scottish Members complain about the powers exercised by this Parliament and by the United Kingdom Government in Scotland and Westminster. That is after almost 300 years of political and economic union, of free trade and of economic and fiscal union. Does anyone seriously believe that we will not see, in this age of mass communications, early evidence of disillusionment, especially when it becomes evident that the so-called opt-outs and subsidiarity have little or no impact on the way in which the Community institutions and the European Court of Justice move to implement the objectives contained in titles I, II, III, IV, V, VI and VII and in article 3? I shall not read those articles because I am sure that everyone knows them by heart.

I ask my right hon. and hon. Friends on the Front Bench why they are reluctant to debate the details of the treaty. Why are they unwilling to admit that the Single European Act, the single market and the treaty of Rome will still be in place even if the treaty fails to be ratified? We will still have a single market. Why are they trying to make out that people such as me and other hon. Members are being disloyal? I remind my right hon. Friends that, on constitutional matters affecting Scotland, I have not changed my position over the past 40 years. My party and my Government have changed on more than one occasion.

I remind my right hon. and hon. Friends that, during the debate in the country in the late 1960s and early 1970s, I asked questions about union and its legal meaning, and I continued to ask such questions in Parliament during the passage of the Single European Act. I remind them that I opposed entry to and membership of the exchange rate mechanism. It was the Government who changed their policy. At what time was I being disloyal? I remind them that, as a Scot, I have constantly striven to get the House to address what the meaning and practice of political, economic and monetary union would be within Europe if it followed the experience of almost 300 years of union within the United Kingdom.

Subsidiarity is legal nonsense. The objectives of the treaty, the treaty of Rome and the Single European Act are legal and binding, just as the articles in the 1707 treaty of Union were legal and binding. If we are to accept such a commitment, the people must be consulted. We must have a referendum. In the absence of a referendum, article 3b

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should certainly be removed from the treaty. That is why I support amendment No. 29 and the other amendments in this group.

Mr. Denzil Davies (Llanelli) : It is good to see the Foreign Secretary present for the debate. I mean that properly. He feels strongly about subsidiarity. He sees it perhaps as something for which he has worked hard, although, of course, it has been in the treaty for 40 years. I remember that on one occasion he made a speech--he makes good speeches--in which he said that he had no intention of seeing the House of Commons become something like Oxford county council. I mean no disrespect to that body. The Secretary of State may feel that subsidiarity is his contribution to ensuring that the House does not become something like Oxford county council. I fear that he is mistaken.

I do not believe that the concept of subsidiarity will stop the centralising progress and process of the Community. It may arrest it in certain areas, because such things ebb and flow. If one reads about the American constitution, one finds that from time to time the Supreme Court upholds state rights against federal rights. But in general the movement is towards the centre and away from the states. Indeed, a study of the jurisprudence of the European Court shows that there was a time in the 1950s and 1960s when the judges paid attention to the concepts behind subsidiarity, if not subsidiarity directly. But then, as we moved through the 1970s, and certainly now, the court is moving in the other direction. We shall debate the European Court next. It may take congnisance of the notion of subsidiarity.

The Solicitor-General is here. It is nice of him to come here. I do not criticise him, but he does not have too much work to do on subsidiarity. I agreed with the Commission when it said in its paper to the Edinburgh summit that subsidiarity was essentially a political principle. The European Court does not have much part to play. That is purely a personal view. I would not pretend to be a lawyer with any great knowledge of subsidiarity, but I suggest to the Committee that the only area in which the court might invoke its jurisdiction is a judicial review.

The European Court might examine decisions made by the Commission, but I do not believe that it would tell the Commission that it was wrong and should not have made a certain proposal because subsidiarity applied. It would not do so because that would be to arrogate to itself a political and administrative decision. I know that it is a political court in one sense, but I do not believe that it would go that far.

The European Court might apply the principle of reasonableness--one of the great principles of British law. It might rule that the Commission had arrived at a decision which a reasonable official would reach and had followed the principles of natural justice, so its decision was not wrong. Many lawyers who have given evidence to the Select Committee on Foreign Affairs, such as Mr. Jeremy Lever, whom the Solicitor-General knows well, have reached the same conclusion. It is probably the safest conclusion that one can reach. We are talking about an essentially political principle. It will ebb and flow, as indeed the views of people in Europe ebb and flow about this strange, not federal but European union which is basically a union of institutions. We are talking about institutions coming together and having different competences and powers. The three most

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important institutions are the European central bank, the European Commission and the European Court of Justice. I hate to describe them as a troika, or, if that is not correct, a triumvirate. They will continue whatever negotiations take place.

There will be more negotiations and perhaps more treaties. Institutions will fight among themselves to gain more power. The power of the Council of Ministers will decrease a little. The European Parliament will receive a little more power. But the Court, the Commission and the bank will continue and will arrogate to themselves more power.

We shall have a Europe of institutions, as we have now. Attempts will be made at the fringes in the European Parliament and the Council of Ministers to inject some democracy. The Foreign Secretary looks perplexed, but that is the basic danger to democracy of the European state or super-state. People may call it federal, but I do not believe that it is federal or confederal. It is institutional power. That is the real danger we face.

5.45 pm

I wish to ask a few questions about subsidiarity. I obtained from the Library the conclusions of the presidency reached at Edinburgh on 12 December 1992. I read them merely in an effort to understand. Under "Basic Principles" the document says :

"European Union rests on the principle of subsidiarity." That must be a typing error--it must mean "recognises" the principle of subsidiarity. It continues :

"as is made clear in Articles A and B of title I of the Treaty on European Union."

One has to read those articles right to the end. At the end they say that the treaty also recognises the principle of subsidiarity. I hope that the Foreign Secretary can put my nit-picking Welsh lawyer's brain at rest by telling me that the conclusions of the presidency contained a typing error. European union cannot "rest" on the principle of subsidiarity. It recognises that principle and perhaps seeks to incorporate it, but it does not rest on the principle of subsidiarity.

Then we are told that the principle of subsidiarity

"contributes to the respect for the national identities of Member States and safeguards their powers."

I do not know what the phrase

"contributes to the respect for the national identities" means. It does not mean anything very much. I shall come back to the question of safeguarding the powers of member states. Subsidiarity may safeguard those powers, but it does so only in the limited areas in which the powers do not rest within the competence of the Commission, the court or the Community and its institutions. We have heard about article 3b. Indeed, it is mentioned in a footnote to the conclusions of the presidency. We are told in the conclusions :

"Article 3b of the EC treaty covers three main elements." I am surprised that the Government could write such meaningless nonsense for the conclusions of the presidency at the Edinburgh summit. The document says that the first element is

"a strict limit on Community action."

The use of the word "strict" is odd. The Government try to say that the Community's powers are strictly limited. The powers are limited by the treaty. I suppose that that is a strict limit. The Foreign Secretary nods his head. Why write that at all? Everyone knows that any institution, unless it happens to be the Soviet Communist party, has

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strict limits. Even the Soviet Communist party was limited by something or other. Every institution in the western world, if it exists within a democracy, is not-- [Interruption.] If my hon. Friend the Member for Houghton and Washington (Mr. Boyes) wishes to have a discussion of the limitation of the powers of the Soviet Communist party, I am happy to do so.

Mr. Marlow : Is not the problem that the institutions are limited not by a strict limit but by a vague limit? The essence of the treaty is its vagueness, which allows the institutions of the European Community to apply power in whatever area they want.

Mr. Davies : Strict or vague--perhaps a bit of both. The point is that there is a limit and the limit is the treaty. How one interprets it and what it means in a given circumstance is work for lawyers. I am sure that the Solicitor-General agrees about that. It is a splendid treaty for lawyers. Lawyers are doing well out of this European nonsense. Of course there is a strict limit, but why bother to tell us something that is fairly obvious and does not add anything?

Mr. Spearing : My hon. Friend mentioned competence, but as he knows from article 3b, subsidiarity--whatever it be--applies only outside areas of exclusive competence. When I asked the Attorney-General to list those areas which were within the exclusive competence of the Community so that we could find out where subsidiarity operated, he declined to do so. He said :

"The answer to the hon. Member's question about exclusive competence is the same as to his question about exclusive jurisdiction, mutatis mutandis : the European Community has exclusive competence where that is conferred upon it by treaty provision or measures Current examples include the common agricultural policy, the common commercial policy and the external tariff." --[ Official Report, 19 May 1992 ; Vol. 208, c. 67. ]

There are many other examples, but he could not define the areas of exclusive competence.

Mr. Davies : My hon. Friend is right ; there are many other things.

Paragraph 2 of the conclusions of the presidency paper says--I am sorry to bore the Committee--that "the three paragraphs", by which it presumably means those in article 3b,

"cover three distinct legal concepts which have historical antecedents in existing Community Treaties or in the case-law of the Court of Justice."

That is fair enough. The first principle is

"that the Community can only act where given the power to do so". Again, that is understandable. It then develops quite an interesting argument :

"implying that national powers are the rule and the Community's the exception."

The Commission paper that was considered at the Edinburgh summit advances the same proposition. The original thinking was probably correct : a few powers went up to the Community, but most of the important powers stayed with nation states.

The Maastricht treaty proposes a reversal of that thinking. Now, if one includes stage 3 of economic and monetary union, most of the important powers--certainly those for domestic and economic legislation, but leaving aside foreign affairs and defence--are held at Community level. Once stage 3 is achieved and we have a common currency--as, no doubt, we will--with the powers of the

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European bank, of the European Court of Justice and all the economic powers, national powers will be the exception.

That change has been taking place over the years, and it is crystallised and almost codified in the Maastricht treaty. That is how I see it, but I may be incorrect. That is why we are debating a substantial sea change under the Maastricht treaty.

Sir Nicholas Fairbairn (Perth and Kinross) : Does the right hon. Gentleman regard the definitions that he has just read as vaguely strict or strictly vague?

Mr. Davies : I was reading not a definition but the conclusions of the presidency and of the Commission's paper. Perhaps the hon. and learned Gentleman should ask the Foreign Secretary.

The paper continues :

"An agreement shall be sought to this effect"--

that is, the relationship with subsidiarity--

"between the European Parliament, the Council and the Commission, in the framework of the interinstitutional dialogue"--

these institutions talk to each other all the time--

"which is taking place among these Institutions."

I have not followed this closely, so will the Foreign Secretary tell us whether there will be some kind of an agreement? Are we working on it now? Is it ready? What is the agreement supposed to do? The conclusions of the presidency refer to it.

The paper continues :

"The principle of subsidiarity does not relate to and cannot call into question the powers conferred on the European Community by the Treaty as interpreted by the Court."

There is very little left. The Foreign Secretary no doubt put his name to this or negotiated it. It continues :

"It provides a guide as to how those powers are to be exercised at the Community level The application of the principle shall respect the general provisions of the Maastricht Treaty, including the maintaining in full of the acquis communautaire', and it shall not affect the primacy of Community law nor shall it call into question the principle set out in Article F(3) of the Treaty on European Union, according to which the Union shall provide itself with the means necessary to attain its objectives and carry through its policies." That does not mean much.

Rather typically for such a document, it continues :

"Subsidiarity is a dynamic concept".

Perhaps the Foreign Secretary will give some examples of this great dynamism outside acquis communautaire, outside the treaty, outside the court, outside the competence of these institutions, outside the bank. Where will this dynamism come from?

The last paragraph says :

"The principle of subsidiarity cannot be regarded as having direct effect ; however, interpretation of this principle, as well as review of compliance with it by the Community institutions are subject to control by the Court of Justice, as far as matters falling within the treaty".

Perhaps the Attorney-General or the Foreign Secretary will tell us what that means. Can an individual who believes that subsidiarity has been breached bring an action in the British courts or European Court of Justice? My hon. Friend the Member for Ashfield (Mr. Hoon) was a Member of the European Parliament and will know the answer, so I shall give way to him.

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Mr. Geoffrey Hoon (Ashfield) : An individual can bring an action if he is directly affected by the decision that he is challenging.

Mr. Davies : I am sure that the Foreign Secretary will confirm that my hon. Friend is right. An individual can challenge a decision taken by the Commission in respect of subsidiarity, which is good to know.

Mrs. Dunwoody : Is not one of the worrying aspects the fact that European people who are unhappy with decisions made by institutions which, for example, are responsible for the common agricultural policy, are taking direct action, as fishermen have done not in one country but in several?

Mr. Davies : My hon. Friend makes a very good point. I do not know whether I should follow it, but if we have a Europe of institutions with no democratic outlet, people may take such action. Some of the posher British newspapers may be upset about our making fools of ourselves in the House by putting on funny hats, but doing that and trying to assert the rights of the Opposition is preferable to chucking cobblestones. Perhaps it is our way of throwing cobblestones. There is a danger that people will take such direct action, especially when they feel very little allegiance to those institutions.

Mr. Ron Leighton (Newham, North-East) : Is my right hon. Friend convinced that subsidiarity will enable an individual to take his case to the European Court of Justice? No doubt the Foreign Secretary will answer that, but subsidiarity is not new. Commission officials will claim that the committee already acts in accordance with subsidiarity. Are there any precedents of an individual making a challenge under the principle of subsidiarity? An individual might challenge a matter under something completely different, but I have not heard of an individual taking an action to the European Court of Justice under the principle of subsidiarity.

Mr. Davies : I defer to my hon. Friend, who is a great expert. Unless the Attorney-General says that my hon. Friend is wrong, I am happy to accept what he says.

Mr. Marlow : The right hon. Gentleman referred to the conclusions of the presidency at the European Council in Edinburgh. Subsidiarity is fundamental to the Government's case that things are moving in our direction, that we will have more control over our own affairs and that Europe is now being decentralised. However, as the right hon. Gentleman has just said, the Edinburgh Council concluded that the interpretation of the principle of subsidiarity, as well as the review of compliance, are subject to the control by the European Court of Justice.

What is the possibility that the Government have sufficient influence over the European Court of Justice to ensure that the principle of subsidiarity is applied in the way that the Prime Minister and the Government are suggesting to the country that it is being applied?

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