House of Commons Hansard Debates for 11 Mar 1993

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extra effort and extra complication into this country's implementation of Community rules and legislation. This question of proportionality--choosing the lightest type of action compatible with objectives--is very important.

Mr. Spearing : I am grateful to the right hon. Gentleman for giving way, particularly as the Attorney-General is with him.

Is not the nub of the problem the fact that, in this treaty, there is no separation of powers whatsoever and that, therefore, we do not know what subsidiarity applies to, outside the very extensive area of exclusive competence? Even in the case of the mixed area, to which the Foreign Secretary has just referred, we have the words "where the scale or effects of the proposed action can be better achieved by the Community".

But as the action is being proposed by the Council or the Commission collectively, surely it is a matter of pure conjecture whether what is desired could be achieved better collectively at Community level or at national level. As my right hon. Friend the Member for Llanelli (Mr. Davies) has said, surely that is a matter of political faith or belief.

Mr. Hurd : That is why, in a few minutes' time, I shall come to what is actually happening. At the moment there is not a legal obligation. What is being provided for is political action--a matter to which I shall come as it bears on the hon. Gentleman's point.

Mr. Denzil Davies : The Foreign Secretary is quite right not to oversell article 3b. At the end of the day, there is not all that much to sell. The third paragraph, to which he has just referred, deals with proportionality. That doctrine has been developed by the court over the past 20 years or more. There is nothing new about the third paragraph. It is about proportionality in action.

Mr. Hurd : What is new is that the position is clearly stated in the treaty. Also new are the steps that are being taken to implement. This is the result of the change that is taking place inside the Community. I shall give some examples in a minute.

Mr. Jenkin : My right hon. Friend has quoted copiously from the Edinburgh declaration. He took issue with my assertion that subsidiarity could be used to expand the legal competence of the Community. The Edinburgh declaration says :

"Subsidiarity is a dynamic concept and should be applied in the light of the objectives set out in the treaty."

It allows Community action to be expanded where circumstances permit.

Mr. Hurd : Let my hon. Friend continue to quote.

Mr. Jenkin : The declaration goes on to say that there may be delegation downwards, but that does not alter legal competence, which means that the Community, once it has the legal competence, cannot give it up.

Mr. Hurd : If my hon. Friend quotes, he ought to quote in full. The balance of the whole sentence, the second part of which he has indirectly quoted sotto voce, completely alters the thrust of his argument.

The three questions that are raised and dealt with in article 3b are the article's essence. This is a legally binding provision requiring that whichever of the questions apply should be answered satisfactorily for all proposals for Community action. It is binding in the first instance upon

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the EC institutions engaged in the legislative process--the Commission as it proposes ; the European Parliament as it is consulted and suggests amendments ; and the Council as it decides. As with other provisions of the treaty, the ultimate arbiter in case of dispute about whether the principle has been complied with will be the European Court of Justice. The hon. Member for Ashfield (Mr. Hoon) was perfectly correct in answering a question from the right hon. Member for Llanelli about the ability of an individual to have recourse to the court if he feels that he is directly concerned by the decision in question.

Much has been made of the apparent difficulties that the court may encounter in interpreting this provision. In this debate, lawyers have been quoted. I should like to refer hon. Members to the answer given by the Lord Chancellor in another place on 8 July last year. The noble and learned Lord said that he believed that the principle was

"perfectly enforceable by the European Court of Justice, as it enforces other principles of general application.'--[ Official Report, House of Lords, 8 July 1992 ; Vol. 538, c. 1140.]

The court takes notice of the purposive character of Community provisions. Once the treaty has been ratified, article 3b will be in it. It will be a powerful expression of the purpose and intentions of the treaty--to reduce the scale and intensity of legislation. In the past, all the signposts put up by member states have encouraged the court down the path of centralisation. Article 3b is different ; it points the Community and the court in a different direction. Member states have made a conscious shift of direction and the court cannot, and I am sure will not, ignore that.

Those who say that the court simply implements the treaty have to accept that once the treaty is ratified--not now, when we deal only with the treaty of Rome and the Single European Act, but when the treaty of Maastricht is ratified--the court will have a signpost in a different direction. That is the crucial point for those who have difficulties about the court.

I do not believe that it is the court that will be crucial. The court is there and it will be the legal underpinning for subsidiarity. But, if it were constantly invoked, as the right hon. Member for Llanelli, I think, said, the principle would not be working properly. It is a fallback, an underpinning.

What we have to do, and have begun to do even before the treaty is ratified, is to make this principle a working fact in the life of the Community. If the institutions at which the principle is primarily aimed abide by it, there will not be cause to challenge any Community action as having violated it. That is why we have begun to establish the procedures.

New procedures were agreed at Edinburgh by the Council to ensure that the subsidiarity aspects of every proposal are fully examined. Any member state will be able, for example, to insist that a proposal which raises issues of subsidiarity should be put on a later Council agenda for a specific debate including those aspects. All new Commission proposals will include justification on grounds of subsidiarity, and that has already begun to happen in practice. So these procedures will provide the

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focus for a debate in the Council as to whether Community action is really necessary before there is a debate on what form it should take.

The next question is, what are the tests ; what form does this kind of discussion take? The European Council has agreed a set of rigorous criteria to guide the Council in making these decisions. I do not agree with the right hon. Member for Llanelli that the result of Maastricht is to strengthen the institutions that he mentioned--the bank, the court and the Commission. The body that will be most strengthened by Maastricht is the European Council, because it is the apex, the architrave, of the three pillars. The foreign affairs pillar and the home affairs pillar have nothing to do with the Community, or the monopoly of the Commission, or the court. This is a side issue, but the right hon. Gentleman raised it, and I believe that it is the European Council, representing the Heads of State or Government, that will be the chief gainer from Maastricht. I come back to the criteria to guide the Council in making these decisions. When there is a choice between Community and national action, the judgment will be made against such criteria as whether there is a significant cross-order effect ; can the objective proposed be sufficiently met by national action alone ; are there economies of scale involved ; would the absence of Community action damage member states' interests, for example, by distorting the level playing field and giving competitive advantage?

Mr. Denzil Davies : The right hon. Gentleman has said that the Council of Ministers would consider whether there was national or Community competence. Who decides that first question? Is it the advisers of the Council who will decide whether there is exclusive competence, because, if there is exclusive competence, subsidiarity does not apply? Who decides whether there is mixed competence--the court?

Mr. Hurd : In the end it is, of course, the court. But the right hon. Gentleman is wrong in saying that subsidiarity does not apply. The proportionality part of article 3b, the third paragraph, applies right across the field. That is why we specifically had the third sentence of article 3b as a separate paragraph and not as part of the second paragraph. That was a deliberate part of our negotiating stance.

Mr. Shore : The right hon. Gentleman is putting forward a very reasonable and reasoned argument, but I put to him a question which he rather dodged and which was put to him a bit earlier. Does not the whole balance of the argument about the tendency to centralise, as opposed to what he would like to see--the tendency to

decentralise--crucially rest upon whether there is to be a central European bank and economic and monetary union? His only defence against that so far has been to say that there is an opt-out protocol, but does he not agree, in his judgment of the balance of the treaty, that, if we do not exercise that opt-out protocol, it is clearly a centralising measure?

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Mr. Hurd : Certainly, if there are not several banks and several currencies, it is a centralising measure ; I do not think that that can be refuted. But, as I say, that would be

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relevant to the House of Commons if and when there was a proposition before it that we should adhere to and adopt a single bank and a single currency.

Even when it is accepted on these and other criteria that the Community should act, it is also agreed--this is following the proportionality point- -that the Community should not do any more than is required to address the problem. that is the last paragraph of article 3b. Here again, criteria were agreed, including, for example, that measures proposed should minimise financial and administrative burdens on member states and leave as much scope as possible for national action, and that there should be a preference for setting a minimum standard rather than for harmonising across the Community.

Mr. Harry Barnes (Derbyshire, North-East) : On proportionality, is it possible that the interpretation of the amount of proportionality that should apply should in some cases be nil, so that it would not be a case that should be dealt with by the Commission, but one that should be left to the nation states? Is that a legal possibility?

Mr. Hurd : It is a legal possibility, of course. There are areas, such as agriculture, which are exclusive competence, but there are all kinds of agricultural matters which are dealt with by nation states, and I think always will be, under the doctrine of proportionality.

There has been a lot of questioning on the commitment of the Commission to this principle. I believe that, no doubt reaching the conclusion by its own intellectual route, it now take this principle very seriously indeed. Early in 1992, the Commission's annual work programme said :

"If a success is to be made of Maastricht and the Single Market, the Commission will have to comply fully with the principle of subsidiarity. Indeed, its future existence depends on this. Beginning in 1992 the Commission, working with the other institutions, will have to establish how subsidiarity is to operate and devise procedures to ensure that no attempt is made to regulate matters that are best dealt with at national level and to avoid a surfeit of legislation."

Those are not just words ; this has happened to the extent that, whereas in 1990 there were 162 legislative proposals from the Commission and in 1991 there were 145, in 1992 118 were planned, but only 50 actually came forward. My hon. Friend the Member for Eastleigh (Mr. Milligan) has already made this point. This shows that there has been a very sharp falling off of the volume of legislation coming out of the Commission for considera-tion by the Council.

Mr. Marlow : Is it just possible that less legislation came out of the Commission last year because it is waiting for ratification, and that once ratification takes place there will be a rush of directives, regulations and other issues by the Commission?

Will my right hon. Friend address himself to the point in the guidelines that subsidiarity is said not to apply if any member state takes action which conflicts with the principle of cohesion? Is that not a fairly powerful area? Does it not mean that a lot of things that we might wish to do in the United Kingdom could be taken as interfering with social cohesion in the Community and therefore as matters not for subsidiarity but for regulation and legislation at the European level?

Will my right hon. Friend come back to the point which

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I made earlier about the 48-hour week? Under the principle of subsidiarity, is that a decision that we would be able to make in this country, in the House of Commons,

Mr. Hurd : It may well become a matter for the European Court to decide whether the working time directive is ultra vires. It has nothing to do with the treaty of Maastricht. I will come back to that point in a moment, because I believe that it underlines a weakness in my hon. Friend's position.

The hon. Member for Hamilton said that we must try to work out a flexible method by which subsidiarity can be taken out of the statute books and made to work in political practice. Exactly.

That is why the Commission was asked to produce, by the end of this year, a full review both of pending proposals and of existing legislation, with suggestions for amendment or even repeal on grounds of subsidiarity. At Edinburgh, it produced the first fruits of the exercise. For example, it accepted that environmental legislation needs to be simplified and updated, in particular, directives on air and water.

On agriculture, the Commission will give more responsibility to national authorities for applying Community legislation. A proposal for the regulation of zoos will be scrapped. The bathing water directive will be revised, and many similar irritating, bureaucratic directives on food will go. That is relevant to the news that my hon. Friend the Member for Southend, East (Sir T. Taylor) reported from the European Parliament today.

Mr. Bill Walker : Will my right hon. Friend please address the point that I made about air service agreements?

Mr. Hurd : My hon. Friend made a cogent and prolonged argument on that point. I shall come back to him on it rather than answer off the cuff.

The Commission, in action and in words, has shown that it is conscious of the need to legislate by setting minimum requirements rather than resorting to heavy-handed harmonisation across the board.

That is only the beginning. It is not enough for the Commission to act in that way, although it has to do so. Member states should also come forward with their own idea of where proposals and existing legislation might fail the subsidiarity test, and during our presidency we encouraged them to do so. We are doing that. The proposal for European works councils, for example, seeks to impose a uniform system for informing and consulting workers. The British ask why that is better accomplished at a European level rather than being left for member states to adapt their procedures to national and local conditions.

Measures relating to speed limits and alcohol levels in drivers' blood are two other ideas which we believe and which we are pressing should be abandoned forthwith on subsidiarity grounds. We shall maintain pressure on those and other proposals in the months ahead. This is not a paper or a theoretical exercise. The Community--no doubt not with the speed that we would wish--is turning that principle into a political operating fact even before it is a legal obligation.

Mr. Michael Lord (Suffolk, Central) : I am sorry to have to take my right hon. Friend back briefly to a point that was made a few moments ago. I think that he conceded

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that the idea of a single currency and a central bank made the treaty a centralising treaty for those people who sign up for that. Does that therefore mean that this is a centralising treaty for 11 nations but not for us?

Mr. Hurd : I was asked about that aspect of the treaty, not all the other aspects on which the Committee has spent so much time. I was asked about the proposal for a single bank and a single currency. Obviously, by definition, if one has a single bank and a single currency, one does not have several banks and several currencies and therefore one does not have several monetary centres. The Community has to decide whether to do that. We in the House of Commons will, or may eventually, have to decide whether we want to do that. That decision will be taken by the House. It does not affect the general movement in the Community which I have illustrated and, I hope, documented--not just what is proposed in article 3b but what is happening on the ground in the institutions of the Community.

Mr. Roger Knapman (Stroud) : My right hon. Friend referred to the speed with which subsidiarity is being applied and to a proposal on the conditions in which animals are kept in zoos, but even that has not yet been agreed. Can he confirm that the only three directives that have been withdrawn are one on the compulsory indication of nutritional values on packaged foods and two on radio frequencies? With due respect, that is not exactly the white-hot heat of politics. Some of us fear that it must be left to national Parliaments to decide what powers they wish to give away, not vice versa.

Mr. Hurd : It is for national Parliaments and Governments to decide what powers they yield to the Community. My hon. Friend is right. He is also right to be impatient at the pace of change. As I have said, we are constantly pressing for that to be accelerated. What we had at Edinburgh was the first fruits, but the first fruits before the treaty was ratified, before the Commission was under any legal obligation. It has begun to act.

I agree that the speed with which the Commission is acting is too slow, but my hon. Friend has shown, even in his small examples, that those are movements in the right direction, not movements in the direction which is constantly prophesied and feared in the House of Commons. All right, it is a slow movement, it is only the beginning, it is only the first roots, but it is happening. It is not a myth, and it should be the instinct and interest of the House to encourage and develop it.

Mr. Marlow : The point of the question by my hon. Friend the Member for Stroud (Mr. Knapman) is that the power to decide on the speed of the move towards subsidiarity is in the hands, not of the House of Commons, but of the European institutions. At the moment, we are waiting on potential ratification. Does my right hon. Friend really think that, once that is out of the way, the European institutions will surrender their powers back to this House?

Mr. Hurd : They are going to. The powers are those that have been granted previously or now by national Governments. How they are used is what subsidiarity is principally about. I have illustrated the change that is

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happening, as my hon. Friend the Member for Stroud (Mr. Knapman) documented. It is in our interests to move that forward.

I pause for a moment on the attitude of those who criticise the clause, the Bill, the treaty. There are some in all parts of the Committee who have, throughout, opposed our membership of the Community and would like us to withdraw now. I see them around me in different places. That would be disastrous, whether for Britain's prosperity or for its place in the world, but at least that is a logical and understandable position, which has been sustained by some right hon. and hon. Members for many years.

What to me is far less understandable and lacks logic is the stance of those who are in favour of our membership of the Community but against the clause, against the Bill and against the treaty. Where would they end us up? We would have torn up a treaty which, with the approval of the House, the Government had signed. We would thus, I promise the House, have robbed ourselves for a number of years of any effective influence in the future of the Community to which we would continue to belong.

We would be left with a treaty of Rome and the commitment to the ever closer union of peoples. We would be left with a whole system of Community law, which my hon. Friend the Member for Colchester, North and many others have criticised. We would be left with the monopoly of initiative of the Commission in all areas of Community competence. We would be left with the jurisdiction of the European Court. We would be left with the argument about the working-time directive. That would not be altered in any way. We would be left with article 235 and the possibility of the extension of competence. All that would remain if we remained in the Community but rejected the treaty.

We would have lost the possibilities of subsidiarity, which I hope that I have documented, we would have lost the exclusions in article L of the role of the European Court from the areas of the pillars for foreign and security policy and home affairs matters. We would have lost for the foreseeable future any possibility of enlarging the Community. We would be left with all the things which so many of my right hon. and hon. Friends and Opposition Members most dislike and most criticise.

We would be left with those aspects of Community life on which hon. Members base their criticism of the treaty, although they are the result of existing treaties and obligations. We would have lost our influence in Europe and the hopeful aspects of the Maastricht treaty and, in particular, of article 3b. I cannot imagine a more feeble and foolish posture.

Sir Peter Tapsell (East Lindsey) : Does my right hon. Friend agree that we would also be left with free access to the single European market?

Mr. Hurd : Yes, of course--policed by the Commission with all the difficulties and all the arguments about regulations and directives. We would be left with the single market and all the associated structure of Community law. My right hon. and hon. Friends have sat through many of these debates and they will know that so much of the criticism is based on the existing structure. That is what has turned many people--understandably --against the Community and its works, but that is not an argument for refusing to ratify the treaty.

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It is an argument for moving forward. That is what the House of Commons and this country ought to do. The debate is not over. I am not claiming that it is over in Europe, in our favour. There are different views in Europe about the future development of the Community. That is inevitable.

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The member states are a heterogeneous bunch, seeking to protect different interests. There has long been a view of the Community as a system of centralised institutions, with responsibility for all fields of policy. That view has now been checked. It is checked by the structure of the treaty, by the pillars and by this article. I am convinced that we should now, whether we are talking as a party, as a Government, as a House of Commons, or as a country, ratify the treaty and move on, working out for ourselves our own ideas as a country which we should put to the next conference, to the next set of discussions with, I hope, an enlarged Community, ideas that we put forward positively, and not simply react to those of other people. They would be ideas based on what most people in this House want--an open, expanding, free-trading, decentralising Community.

That can be built only on the basis of this treaty and on the principle of subsidiarity.

Mr. Barnes : The Secretary of State made an interesting distinction between the three paragraphs in article 3b. He described the first as setting out action that could be taken on a legal base. Could action be taken? Secondly, should it be taken? Thirdly, in the paragraph on proportionality, how much action should be taken?

In an intervention, I asked the Secretary of State whether it would be possible for no action to be taken on proportionality at all, even though the Community could act according to the provision in the first paragraph. If that is the case, the second paragraph which contains the term "subsidiarity" is unnecessary, because the nil proportion is something that could apply from the third paragraph. I ask hon. Members to look at amendment No. 340, which does not seek the deletion of the-- [Interruption.]

The Second Deputy Chairman of Ways and Means (Dame Janet Fookes) : Order. I am sorry to interrupt the hon. Member, but there are far too many private conversations going on. If people wish to engage in those, they should leave the Chamber.

Mr. Barnes : I do not seek to delete the entire article, but only the second paragraph, which applies to subsidiarity. From the position that was put forward by the Secretary of State, logically the second paragraph is unnecessary and counter-productive. It is important that we should have an understanding, which we do not have from this debate, of what subsidiarity is, its full definition and how it is to apply.

I am a member of the Select Committee on European Legislation, which has now received a letter from the Leader of the House stating that in future all measures coming before us on regulations and directives will contain a paragraph on subsidiarity. The Government will be putting it to us whether measures meet or do not meet the provisions on subsidiarity. On that Committee, we need to be in the position to judge whether the paragraphs being

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put forward meet the criteria which, it is argued, are now being adopted by the Commission and other areas of the Community institutions.

Mr. William Cash (Stafford) : Does the hon. Gentleman, who sits with me on the European Legislation Committee, recall that we already have these paragraphs in the reports presented to us, but that they say nothing, other than the assertion that, in the opinion of those who have prepared them Ministers in that particular instance the situation falls within the subsidiarity rule? It is a meaningless exercise and does not get us anywhere.

Mr. Barnes : I agree that it is a meaningless exercise. All it is at most, even though it is more detailed, is a retionalisation of a decision already determined by the Commission and in the Government's response to Commission proposals.

We can continue to have this check list thrown about all over the place, but all it will do is reinforce decisions that would have been made in any case. It seems that we should have been having the subsidiarity provisions throughout the time the Select Committee has been operating, because what is said in the letter that was read out by my right hon. Friend the Member for Llanelli (Mr. Denzil Davies) is that, for 40 years, the principle of subsidiarity is one on which the Community is supposed to have been acting.

This debate follows a debate that we had on the institutions. The two are related. I argued in the debate on the institutions that the institutions of the Community which were developed, especially from Maastricht, were undemocratic, centralised and highly bureaucratic and were leading us down the road to a unitary state or a state of the institutions.

It is often argued now on subsidiarity that there might be something in that when related to the institutions, but that it is all okay because there is the sacred principle of subsidiarity which now begins to correct all that and means that the tendencies contained within the institutions can somehow be overcome by applying this notion. It will restore democracy ; it operates forms of decentralisation ; it tackles over-bureaucracy ; and begins to return areas of sovereignty to nations.

If it is a concept like that, it is highly important and significant. If it were to be so, it would have to be a constitutional and legal notion and not merely a social and philosophical set of ideas with some possibility that it might operate in the future. We should have to tie things down in that area. That would run contrary to the arrangements contained within the institutions with terms in legal and constitutional provisions that take us in the opposite direction.

We are faced with a notion which is nonsense and meaningless ; it sounds as though it is saying something, but it is intended to mean different things to different people. There is no way in which the terms contained in it can be effectively checked in any area. There is a principle in philosophy called verification, by which one seeks to verify what has been said in different areas. How can one verify the correctness of subsidiarity and whether it is applied in a particular area? Anyone can agree or disagree that it is applied. It is merely the wildest form of value judgment to say that it is operating.

Mr. Spearing : Is not that wholly borne out by the words of the article? While in a court of law one verifies what has happened or what is, the essence of subsidiarity, as defined

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or attempted to be defined, is that one is trying to look into the future and come to some conclusion about which way the dice will fall. That is almost impossible in the modern world.

Mr. Barnes : That is an extra aspect to the points I am making--what is being applied to developments and progress in the future. It is not merely a judgment of what a set situation is, which is what people would normally be trying to apply when they were operating laws.

It would be nonsense to have a measure before us containing the concept of subsidiarity. Many Scottish and Welsh Members have argued strongly to have the principle of subsidiarity applied in the United Kingdom. If that notion is meaningless for the whole of Europe, including this nation and its links, it is nonsense to operate within this system. We would find ourselves in the most difficult arrangements if we had in front of us a measure affecting Scotland, for instance, which included this term. It is a value-laden notion that we would not normally be concerned with in constitutional and legal matters.

Mr. Andrew Rowe (Mid-Kent) : The hon. Gentleman seems to be treading on thin ice. The House constantly trades in exactly the kind of concept which he is vilifying because it is difficult to verify. The word "devolution" is but one example of such a concept. My right hon. Friend the Foreign Secretary pointed out how this arguable concept might apply in practice. That made it much more tangible than the hon. Gentleman is arguing it to be.

Mr. Barnes : I agree that we deal with matters in which value judgments come to the fore. In legislation we often have the word "reasonable", and there is much argument about whether the word should be included, or whether we should be more precise. In regard to devolution, if there is not a clear definition problems would emerge in various areas. Things change according to changes of degree. If a term is so shot through with value considerations that it cannot be cashed in, we are in serious difficulty in dealing with legislation. Of course, we can put anything we want, however nonsensical, in a Bill, but we may find ourselves in considerable difficulty in carrying out the law.

Mr. Bill Walker : Will the hon. Gentleman take it from me that devolution means all things to all people, particularly in Scotland, where there are so many ideas, including the declaration of Perth to which I listened a long time ago? It is all a question of who is talking about it, when, what they are talking about, and what it means to them.

Mr. Barnes : Legislation would have to spell out exactly how devolution was to apply. In regard to Northern Ireland, we would have to establish in the legislation whether there was to be a parliament in Northern Ireland and whether a Bill of Rights was to be associated with it.

Recently I introduced the Representation of the People (Amendment) Bill. I went through it word by word to see whether it included anything of a value nature which was anywhere near the concept of subsidiarity. Nothing begins to approach it. There is a reference to access for disabled people and various audits being done, as well as terms which begin to nudge near value judgment considerations, but there is nothing as sweeping as the provision with which we are dealing, which involves all the nations in the

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European Community. We should not have to deal with nonsensical provisions. That is why I want to delete the term.

Never have so many hopes been based upon such a flimsy and inadequate concept. Maastricht tells us that subsidiarity means that the Community is only allowed to act when member states cannot officially achieve a Community objective and that this is better achieved by the Community itself, provided that the European treaties do not already give the Community exclusive competence in the areas concerned. The exclusive competence area expands and grows all the time. There is exclusive competence in regard to the common agricultural policy. Last night we voted on a measure which added the potato regime to the CAP. So competence in that area has been extended very recently.

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Who is to judge when conditions of subsidiarity apply? None other than the self-same institutions to which I have referred and which were discussed in earlier debates--the Commission, the Council of Ministers and perhaps, if it can find a way in by consultative processes, the European Parliament, which is mentioned very little in any of these discussions. There is a great democratic deficit in Europe which should be before us all the time.

In cases of dispute, the European Court might be called in to make a judgment, but its judgments will be purely arbitrary because it will have merely the undefined principle of subsidiarity before it. We have the agreement made by the heads of state at Edinburgh and the document which has been quoted from at length in our debates. But those are not part of the Maastricht treaty. Nor does the treaty contain provisions acceptable in international law which would have some feedback into arrangements under the treaty.

Nobody has suggested the use of mechanisms to ensure that those provisions are added to the treaty. In the end we have little legal guidance about how this vague, obscure motion is to be dealt with, yet, when judges make decisions, those decisions will be constitutional and should be made under the provisions of the treaty. They will be of such significance that they should be acted upon only if adopted by referendums in all the member states.

The recent European Council meeting of Heads of State at Edinburgh attempted to elaborate on subsidiarity. Far from deciding to devolve powers to national or regional levels throughout Europe, they stressed the centralising nature of subsidiarity. The hon. Member for Colchester, North (Mr. Jenkin) quoted at length from the document that was agreed at Edinburgh. We should be fully aware of its contents.

The centralising aspects of the provisions in the document are considerable. It states that it

"cannot call into question powers conferred on the EC by the Treaty",

as several hon. Members have mentioned. It says that it shall "not affect the primacy of Community law nor call into question (that) the union shall provide itself with the means necessary to attain its objectives and carry through its policies".

It continues :

"it allows Community action to be expanded where circumstances require".

Someone will have to judge what the circumstances are which will allow the area to be expanded. It also says :

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