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The Earl of Onslow: When we came to the Maastricht Treaty all those years ago, subsidiarity was extraordinarily difficult to define. The only then known definition was the subsidiarity as run by the Vicar of Christ in Rome, who allowed his subsidiary bishops sufficient leeway over matters in which he was not interested. That seems to be exactly what has happened in relation to subsidiarity within the European Community.

My noble friend Lord Moynihan says that there has been a watchdog about the place, looking to make sure that subsidiarity has actually been present. The watchdog strikes me as being a rather neutered chihuahua compared with the amount of subsidiarity that has actually been brought about.

I merely wish to ask what subjects have been declared subsidiary; how much subsidiarity there has been; and whether any matters have been repealed. In other words, has any acquis communautaire been "de-acquis communautaired"--if that is the right term? That is what we were promised in the Maastricht Treaty, and it appears there is an attempt to promise it in the Amsterdam Treaty. To someone like myself, who is becoming more and more doubtful, it seems to have some good provisions. However, if it goes on as it is, it will make the European Community quintessentially unpopular. There will be a terrific row and it will break up, unless we get the legislation more in tune with the wishes and desires of our people. I wish to know what has been declared subsidiary since 1992 and what action has been taken on it.

5 p.m.

Lord Grenfell: We need constantly to remind ourselves that the subsidiarity principle relates to areas where the Community does not have exclusive competence. I am therefore rather puzzled by the fear in the heart of the noble Lord, Lord Moynihan, when he considers paragraph (2) because he obviously has considerable difficulties with it.

It would be sensible to read paragraph (2) in conjunction with paragraph (4). In effect, paragraph (2) simply reflects the principle--particularly the part in the paragraph which says:

That reflects the principle that subsidiarity must be related to what is exclusively in the competence of the Community and what is not.

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I notice that the noble Lord was rather shy about referring to paragraph (4). I am not sure I heard him spell the words out. Paragraph (4) states clearly that:

    "For any proposed Community legislation, the reasons on which it is based shall be stated with a view to justifying its compliance with the principles of subsidiarity and proportionality; the reasons for concluding that a Community objective can be better achieved by the Community must be substantiated by qualitative or, wherever possible, quantitative indicators".

That seems to me to be an extremely sensible and hard test. If one reads paragraph (2) in conjunction with paragraph (4), I do not think the two are contradictory. Paragraph (2) sets the scene in which the subsidiarity principle might or might not apply. Paragraph (4) spells out clearly the hard test that the Community must go through in order to prove that it has the prior right to legislation.

The Earl of Clanwilliam: Before the noble Lord sits down, I should point out that paragraph (1) states:

    "In exercising the powers conferred on it, each institution shall ensure",

compliance with the principle of proportionality. Here we have proportionality raising its ugly face in competition with subsidiarity. As proportionality is the responsibility of the Commission and subsidiarity is the responsibility of ourselves, it is the Commission and the Council which exercise proportionality. That is in paragraph (1), so it totally negates paragraph (4) which the noble Lord dealt with.

Lord Wallace of Saltaire: The subsidiarity principle is extremely important and I have much sympathy with what was said by the noble Lord, Lord Stoddart, at the start of his speech. We see government as most effective when it is as close to the people as possible.

I also believe that from the outset the European Commission had certain centralising tendencies, a natural belief by the French fonctionnaires who established it that whatever was done in Brussels was done better. It has been important to establish with the principle of subsidiarity that we need to change the basis of a much larger and more diverse Community.

We must distinguish between politics and law here. A number of the arguments we have heard this afternoon suggested that unless absolutely everything is written into the treaty, they will not be contained. It was suggested at one point that if it were not in the treaty that a member state could leave, then it would not be possible. It was not in the Act of Union with Ireland of 1801 that Ireland could leave the United Kingdom, but it did. One cannot write absolutely everything into law.

The subsidiarity principle was written into Maastricht. I agree with many of those who have spoken so far that it has not yet been used as effectively as it should. The last Conservative Government must share part of the blame for that. They failed to build coalitions with like-minded governments--and there are some--in order to push the principle through. The British and the French

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Governments produced lists of items which they would like to be returned to national sovereignty; they were rather different. It was a standing joke in Brussels two or three years ago that the British Government were arguing at the same time that all animal welfare issues were better dealt with at Brussels than at national level, but that no human welfare issues, social welfare, should be better dealt with at Community level. We must be rather more consistent in arguing for subsidiarity.

However, the principle is now there to be used. The European Union is a process of continuing negotiation. I hope that the strengthened protocol within the treaty will be more effectively used by the British Government than the weaker version in the Maastricht Treaty which was used by the previous government.

Lord Beloff: I wish to dissociate myself from something which the noble Lord, Lord Stoddart, said. It was that when subsidiarity was brought back as part of the Maastricht Treaty, everyone applauded. I thought it was nonsense then; I think it is nonsense now.

There are two forms of recognised government in a civilised world: unitary governments and federal governments. Having spent most of my life studying the latter, it seems to me a perfectly valid form of government which, in a proper federal constitution such as that of the United States or Australia, can last for a long time. It does not give rise to endless tensions and is something to which the ordinary citizen can refer, to ascertain whether a particular exercise of governmental authority is federal or for the state and the province.

The European Union is neither a centralised government--if it admitted to that there would be universal expansion, not just in this country--nor, alas, is it a federal government because there is no clear division of powers to which the ordinary citizen can refer and upon which, as in the United States, Australia or Canada, a court can ultimately judge whether the boundaries have been correctly set.

For once, I agree with the noble Lord, Lord Wallace of Saltaire. The Union is in a constant process of negotiation and renegotiation. I believe that it takes up the energies of this Government and other governments which could be much better spent in measures to improve the lot of their own populations. Subsidiarity is a word which when I started teaching government, no one had ever heard except, as has been pointed out by the noble Earl, Lord Onslow, a few theologians. The introduction of the word has simply been a camouflage for the attempts of particular parts of the European institutions to acquire power under the cover of distributing it. We can get nowhere with this system. I can only tell the Committee that its time in dealing with the treaty is largely wasted because it will not survive.

Lord Renton: Before my noble friend sits down, may I ask him whether he agrees that, bearing in mind that all the European countries in the European

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Union are committed to subsidiarity, each of them should have the right to be told how it is working, if at all?

Lord Beloff: They may be committed to subsidiarity, as someone may be committed to a belief in astrology. It does not get us any further.

Baroness Park of Monmouth: I do not believe that I shall get the matter much further either. I wish to ask the Minister a question. If we consider paragraphs (4) and (5) of the protocol, and we recognise that the Community will act on its own only if there is no national way of doing something, what have we managed to establish formally as the time for scrutiny which we are to be given? That is one of the major problems. Matters are decided but because they come to both Houses so late it is virtually impossible to consider what the outcome will be. Whatever we think about subsidiarity, it is vital to establish an effective mechanism for keeping track and being given an opportunity to express a view. The protocol states on page 86, in paragraph (9):

    "Without prejudice to its right of initiative, the Commission should: ... except in cases of particular urgency or confidentiality, consult widely before proposing legislation".

Who will decide whether it is so urgent that they do not have to consult? Also, I should also like to know more about the actual control of scrutiny within the mechanism of the Community. The representative states in paragraphs 129 and 130 of House of Lords Paper 25 on advancing parliamentary scrutiny of the third pillar:

    "We looked at what was done in the Irish Presidency and something like 31 measures went through ... but only seven of those measures actually went through the Council of Justice and Home Affairs Ministers".

The committee asked,

    "Do you mean that they went through other Councils?"

The answer was:

    "They went through other Councils. I think five measures were adopted without debate by other Councils which never went to the Council of Justice".

He went on to say that those Councils, as far as the representative knew, had no particular competence to make a specific decision. I am anxious to hear from the Minister therefore what we have done to ensure that we have effective, reasonable time for scrutiny.

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