The Future of Europe

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Jim Dobbin (Heywood and Middleton): The word ''subsidiarity'' has been mentioned a few times tonight. During the deliberations of the group on the role of national Parliaments, of which my hon. Friend the Member for Birmingham, Edgbaston is the chairman, was any consideration given to the engagement or involvement in the process of some sub-national authorities?

Ms Stuart: Yes. We quickly reached the conclusion that how individual member states deal with sub-national legislative bodies is firmly up to them.

Mr. Terry Davis (Birmingham, Hodge Hill): My hon. Friend the Member for Birmingham, Edgbaston told us that MEPs hunt in packs. By contrast, Lord Maclennan said that there has been no attempt to co-ordinate the positions of our representatives at the Convention or to agree a common or defined national interest. Will she and the right hon. Member for Wells to tell us why?

Ms Stuart: The Convention meets and sits in alphabetical order. We are trying to break down the boundaries, but some groups hunt naturally as a pack and we must live with that. However, the UK delegation, including the MEPs, holds meetings, and our colleagues tell us that they regard the UK group as the most coherent and organised. Although we have different views on some topics, they feel that we represent the UK national interest, and our meetings strengthen that. Furthermore, it would not be good if we went with a closed mind, which would defeat the purpose of an open debate.

Mr. Heathcoat-Amory: There are inescapable personal differences between my colleagues and I, which is healthy. The Convention should be challenged and should examine radical ideas, which might be suppressed if we tried to unify artificially around a British position. However, it was a fair criticism in the Convention's early weeks that the British Government did not share information with us, and I felt and said that they should have done more. I was not even sent the written speeches of members from the Government after they had spoken, let alone before. Things have improved, and as the hon. Member for Birmingham, Edgbaston said, we are invited to delegation meetings every time we go out. My working group also receives specialist advice from the Foreign Office. There are British interests, and we are reflecting them, but perhaps we should have done more, earlier.

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Mr. Cash: I should like to address a question specifically to Lord Maclennan, although I would be happy if anyone else wanted to chip in, on the legal personality of the Union, on which I have made a few pronouncements in the past few years. As I am sure that he knows, the European Commission just put out a communication that recommends simplification and merging of the treaties and giving the EU a legal personality and a constitutional treaty. Even more dangerously, it also proposes the fusion of the existing pillar structure of the EU.

Having listened to the great experts, academics and lawyers, will Lord Maclennan spell out in simple language what conferring legal personality would involve? Does he accept that it would mean a single European voice, for example, in the common foreign and security policy and that, in combination with a constitutional treaty or arrangement, it would in effect be game, set and match for those, like himself, who believe in the federal project? No doubt he would encourage that, but could he tell me what he thinks the phrase ''legal personality'' means?

Lord Maclennan: That invitation from a distinguished lawyer to give a simple answer is somewhat disingenuous. It is not a matter that can be answered simply. The lawyers' view, which has been universally expressed in evidence to the working group, is that although the European Union was not given legal personality by deliberate attribution when the treaties were signed, in contrast to the European Community treaties, which gave the EC legal personality, it has it nevertheless. All that flows from the failure to attribute legal personality is a degree of confusion among the partners with whom one is negotiating, in many cases in complex mixed agreements, part of which may refer to the subject matter of the EC, perhaps a trading matter, and part of which may refer to matters that fall within the Union. At root it is a matter of clarification, not of amendment of the law.

Lord Grenfell: I join my colleagues from the Lords, who have now departed, in thanking you for having us here, Mr. Cook. Let me put this question to Ms Stuart. Is any consensus beginning to emerge on whether a statement of competences, be it in the form of a tidied-up treaty or a constitution, should spell out those areas that should be left to member states or those that should be reserved to the EU Commissioners? If it is the former, the list would seem endless, and if it is the latter, the treaty would have to be amended every time a competence was to be added. Neither seems to be terribly satisfactory. Is there a middle way? Is any consensus emerging on how the issue might be dealt with?

Ms Stuart: The prevailing consensus is that the presumption is that competences remain with the nation state unless they have been specifically given to the Union. In practice there are huge difficulties. On the question of legal personality, we have entire debates about whether something has already happened de facto, even though it is not enshrined in the article. That will be one of the big problems of the outcome of the Convention. If we come up with something that is deemed to be a new treaty, Nice,

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Amsterdam and previous treaties could unravel. Would total ratification be required? A whole range of leading questions have to be addressed. My firm view is that, with a few exceptions, the presumption is that the competence is with the nation state.

Mr. Heathcoat-Amory: This matter is under examination by a working group. Powers are supposed to rest at member state level unless they are defined in the treaty. That should be made more explicit. We should have something similar to one of the articles of the American Bill of Rights, which puts it beyond doubt that the default position is that the powers rest with states—in our case, member states—unless they are given to the central power.

It follows that the powers or competencies to be exercised at Union level must be defined with great exactitude. That would put them beyond the reach of interpretation by the European Court of Justice, which as I said has a tendency to see things from a centralised perspective. That concept has met opposition in the Convention from people who say that it would deny flexibility, but I am afraid that we cannot have it both ways. If the public are to have confidence in the clarity and certainty of who does what, we must define the powers and competencies precisely, not as generalised objectives.

To say, for instance, that the European Union will counter organised crime justifies pretty well any police or judicial activity. In the same way, in the policing of the single market, more or less any action to do with anything that can be moved across borders is justified. Therefore, the competencies must be spelled out in a treaty. If they are not referred to, they must be assumed to lie and to remain at state level.

Mr. Connarty: The first part of my question is to ask my hon. Friend the Member for Birmingham, Edgbaston to clarify the statement in which she referred to the question of a sub-member state body. An example is the Scottish Parliament, which has to legislate following European directives. The opinion was that that should be dealt with by the UK state. Is that the opinion of her working group or the formed opinion of the Convention?

Secondly, I read that the chairman, Georges Katiforis, stated that there was no point in debating subsidiarity in relation to the environment. Is that his opinion on the environment only or in relation to everything? I notice that the European Parliament has said that if there were a judgment on questions of subsidiarity, it should be referred to the Court of Justice. Does the opinion of the Convention support that view, or the view of our European Scrutiny Committee that it should go to a body made up of politicians, not to the court?

Ms Stuart: At this stage, there is no such thing as opinions of the Convention. The whole point of the working group is to consider specific subjects and then put issues to the Convention as a whole. My comments on sub-national bodies with legislative power could best be described as a holding position, because I

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believe that we should deal with the processes of national Parliaments before we got into anything else.

Greece, for example, does not have regions as such. We have an amazing mixture. The German system is extremely sophisticated. Its constitutional courts have consistently refused to give rulings on subsidiarity, saying that they are political decisions. I get the impression that member states would not react too well if the Convention tried to tell them what the relationship should be between their national Government and regional legislative bodies.

As for Mr. Katiforis, I believe that colleagues must speak for themselves. I could ask for clarification, but it would not make sense not to debate subsidiarity. One question that we should consider is whether the European Court of Justice should look to a model that is analogous to our Attorney-General's references. Sometimes, when decisions that are made are not clear, we simply have to wait for further court decisions, rather than seek clarification.

Mr. David: The convention is on the future of Europe, and many of us hope that, in 2004, the European Union will increase its membership by as many as 10 member states, so that we have a union of 25. I understand that representatives of the accession countries attend the Convention as observers. Has any attempt been made to obtain the views of those observer representatives?

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Prepared 16 July 2002