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The Earl of Clanwilliam: Is it not the duty and the responsibility of the Court of Justice to ensure the ever deepening and widening of the Community, and that therefore its card is already marked in advance against the use of subsidiarity?
Lord Whitty: The role of the Court in this respect is to ensure that the terms of the treaty are applied and to resolve disputes over the application of those terms. Therefore, the Court will be acting as would any court in deciding what those terms mean.
Lord Pearson of Rannoch: If there were to be a dilemma in the mind of the Court--I agree with my noble friend Lord Clanwilliam that that is extremely unlikely--surely the Court would have to find in furtherance of the
Lord Whitty: The Court is the arbiter of the treaty; it is not the engine of the treaty. The Court acts as would any national court in interpreting the legislation which is applied in the institutions which it governs. That is the role of the Court. That is the only way in which the Community can operate on any effective constitutional and legal basis. I appreciate the fact that the noble Lord does not want any of those institutions, but if we have any of the institutions, we have to have a court to ensure that the rules apply. That applies in the area of subsidiarity just as elsewhere.
As I have said, this is a bit of a jelly of a topic. However, it is a very important principle. We need to find new ways to ensure that what we all mean by "subsidiarity" is effectively followed by the institutions
Lord Renton: The noble Lord has not yet mentioned the Government's attitude with regard to Amendments Nos. 30 and 54C which are grouped with this amendment. Whether or not the principal amendment is accepted, I should have thought that either of those two amendments, which enable our Parliament to be kept informed, should be welcome to the Government. The noble Lord's views on these two amendments would be helpful.
Lord Whitty: Amendment No. 30, which deals with reporting to Parliament on the principle of subsidiarity, is couched in such terms that it requires reports on the application of the principle of subsidiarity throughout the Union. It would not be possible for the Government to produce that report. The institutions of the European Union could produce such a report which would then be subject to scrutiny by this House. Indeed, the Commission has already undertaken work on its current annual review which is, I believe, entitled Better Law Making. It provides documentation which is subject to the scrutiny processes of this House. It includes the Commission's report on the application of subsidiarity within its processes and will, in the normal way, include the British Government's comments on the Commission's report.
Lord Whitty: I am not sure of the distinction which the noble Lord is making. However, perhaps the question of reporting should be dealt with in the whole context of scrutiny because subsidiarity is only one aspect of the way in which we consider Community legislation in this House and in another place. It would probably be better to deal with those amendments in that context. The Government are in no way reticent in allowing in this House and in its committees debates on proposed European legislation and on the Commission's reports on such legislation.
Lord Stoddart of Swindon: This has been a long and fascinating debate in which we have had many sensible contributions. I do not want to spend too much time replying, but there is a dispute about exactly what "subsidiarity" means and about its effects. It is absolutely true that those who expressed doubts about the principle during our Maastricht debates have been proved right, as the noble Lord, Lord Pearson, said,
As the noble Lord, Lord Moynihan, said, the debate is also about whether the protocol helps or hinders the position of subsidiarity. I do not know how we can reach a decision on that, but what worries me is that a simple statement of principle has now been cluttered up by 13 paragraphs, of which I believe 10 are additional. Once the Commission and the Court get their fingers, eyes and minds on that, there is no knowing what they might do. As the tendency is to centralise, they are almost bound to try to undermine the principle of subsidiarity. I am afraid that my noble friend has not reassured me on that point.
As the noble Lord, Lord Renton, said, one unfortunate result of the provisions on subsidiarity has been that the Commission produced a memorandum on the matter which was so gobbledegookish that apparently nobody understood what it was talking about. If no one knew what the Commission was talking about, can we be sure that the Commission itself knew what it was talking about? We must bear such points in mind and take into account the strictures of the noble Lord, Lord Renton, in saying that we must ensure--apparently, we all believe this--that the European Union does not become a European superstate by ignoring the laws and traditions of member states which have been operating not just for a few years, but for many generations. I believe that we should heed that.
The noble Lord, Lord Wallace, said that we cannot write everything into law. That is true. But the problem is that in matters European, the Commission wants to write everything into law. It wants to put everything down on paper in order to bind the member states to its policy and its direction. Our own law gives a certain flexibility for interpretation by the courts. As far as I can see, it is the European Union and the Commission which want to tie everything into words so that there can be no doubt and no escape for member states.
The noble Lord, Lord Beloff, said that he did not agree with me that everybody applauded the subsidiarity clauses in the Maastricht Treaty. He is absolutely right. I did not applaud them myself. As usual, the noble Lord goes right to the heart of the matter in saying that they do not matter and we are wasting our time discussing this particular clause. It is the job of this House and another place to scrutinise legislation. Even though we may believe that we are wasting our time we should nevertheless scrutinise it.
The noble and learned Lord, Lord Simon of Glaisdale, saluted the insertion of the word "subsidiarity" into the Treaty of Maastricht. He told us that it was a very good thing. He said that subsidiarity was all about the science of government. Who could quarrel with that? Unfortunately, he went on to say that the Commission
Lord Simon of Glaisdale: Perhaps the noble Lord will allow me to intervene. The difficulty that arises is that these institutions are manned by human beings. The principle of subsidiarity is well established. But I ventured to say that the Court would try to centralise because that was in the nature of a constitutional court. Similarly, the Commission will try to mitigate the principle, as it did immediately after it was enunciated with a powerful memorandum at the Edinburgh Conference. One must accept that, but it does not mean that the principle itself is not one that is well worth laying down and that the Government should not do all that they can to vindicate that principle whenever it arises. I speak as a strong pro-European.
Lord Stoddart of Swindon: I thank the noble and learned Lord for underlining the whole principle and explaining that subsidiarity can operate only as long as it is worked at and we can undermine the baleful centralising influence of the Commission and the European Court.
My noble friend Lord Whitty did his best to provide the Committee with some reassurance about subsidiarity. I am not sure that he succeeded. However, it is not his fault. It is very difficult to give an assurance about subsidiarity. The problem is that there are no examples. I felt rather sorry for my noble friend. He sought to reply to a debate that was highly critical of what had happened on subsidiarity without being able to refute what had been said. But I am quite sure that my noble friend is a strong supporter of subsidiarity and wants more devolved power from the European Union. He does not want to push power up; he wants some power to come back down. If I understand my noble friend correctly, he and his colleagues will do their best to ensure that the principle of subsidiarity really works this time and will take forward the matter. Because I believe that he will do that, I seek leave to withdraw the amendment.