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Lord Tebbit: My Lords, I thank the noble Lord for giving way. I should say by the way that even in the Catholic Church there is another doctrine, which is the forgiveness of sins if one is truly repentant. While he is entitled to point to me as a sinner, I hope that he will understand that I have truly repented. The point I wanted to make to him was about the court. Surely the danger here is that if the Council of Ministers or the Commission should come to a conclusion that they wanted to increase the extent of subsidiarity, that decision could, itself, be challenged in the court. It would then fall to the court to say whether or not that had gone too far.

Lord Whitty: My Lords, first, we would all welcome the noble Lord's confession of repentance, even if his sin was not perhaps one that I would normally acknowledge. Nevertheless, such humility is welcome in this House. With regard to the scenario which I think the noble Lord spelt out, if the Council of Ministers, or the Commission for that matter, decided that subsidiarity should apply to a greater degree than had previously been presumed, that is a matter for the Council of Ministers. It is not a matter for the court. At the end of the day, the Council of Ministers has to decide whether to accept or modify the Commission's proposals for any form of legislation. It is only the other way around--where the Commission or the Council has failed to observe subsidiarity--that the court could consider a challenge.

Lord Tebbit: My Lords, I am grateful to the noble Lord, because this is a matter as regards which I am genuinely uncertain, and I suspect from his hesitancy that he may not be certain. So I shall give him a moment to continue thinking. It is clear that if, in a vote in the Council of Ministers, a decision were reached by QMV, one of the nation states which was dissatisfied with that and thought that the principle of subsidiarity had not been applied, could challenge that in the court. That, as I understand it, is certain. But let us suppose that one of the nation states thought that the principle had been pushed too far, could that nation state challenge in the court, and would not the court have power to rule on that?

I hope that the noble Lord has received a message which will enable him to give me a clear reply. He should not take too much notice of the fact that the

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noble Lord, Lord McIntosh, is there, because he told me the other day that Ministers should not answer questions with the words "Yes" or "No", even when it is possible to do so, because the words "Yes" or "No" might be misleading. I am surprised at the noble Lord. I thought that lawyers had great skill in court in forcing people to answer "Yes" or "No" to the questions which were put to them.

Lord McIntosh of Haringey: I am not a lawyer!

Lord Tebbit: My Lords, I really do apologise to the noble Lord for that.

Baroness Ludford: My Lords, before the Minister replies, might I make a comment on paragraph--

Lord McIntosh of Haringey: My Lords, no. There has been an intervention. There cannot be an intervention on an intervention, particularly on Third Reading.

Lord Whitty: My Lords, I am not a lawyer either, the noble Lord will be relieved to know. The advice that I have received telegraphically from my noble friend indicates that I was correct in my assumption: at the end of the day, if the Council of Ministers has gone through correct procedures, and proposed something, and extends subsidiarity as a result of that, it is not challengeable in the court on grounds of breach of the subsidiarity principle. If it fails to observe the subsidiarity principle, it can be challenged.

We need to make progress, so I shall wind up. Those who see this protocol as a weakening of the principle of subsidiarity tend to quote the words from Article 2 relating to the acquis communautaire. That mistake was made also in the other place the other day by the honourable friend of the noble Lord on the Front Bench. In fact, the wording of the acquis communautaire is virtually the same as that agreed at Maastricht and in the Edinburgh Agreement. We have not gone backwards; we have gone forwards both in clarity and extent to the commitment to subsidiarity. That should be recognised in this House.

Subsidiarity may not have worked perfectly, but we are improving the way in which it works. This protocol will allow the institutions of the Union to improve still further. That is something that this House should welcome. We shall have an opportunity to debate subsidiarity and other aspects of changing Community law on many occasions in the future, without the amendment. The second part of the amendment in relation to the UK is probably irrelevant to this legislation. The part relating to the EC report applies already within our existing parliamentary procedures. Therefore I ask the noble Lord, Lord Pearson of Rannoch, to withdraw the amendment on the grounds that it is unnecessary and that we have made progress on the subsidiarity concept.

Lord Pearson of Rannoch: My Lords, I am most grateful to all noble Lords who have spoken, especially those who have supported the amendment. I think that

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it would be in order to try to hit finally on the head some of the points advanced by those who oppose the amendment. I shall start with the noble Baroness, Lady Williams of Crosby. She singled out paragraphs 1 and 5 of the protocol--in that she was joined by the noble Lord, Lord Grenfell, who singled out paragraph 4 of the protocol--to show that the subsidiarity clause and the protocol now attached to it were moving in the direction of the protection of national sovereignty. I do not want to repeat the clauses again. Noble Lords did so. Any noble Lord can read those clauses, and has to ask himself one question: yes, but who decides the issue? Who is the final arbiter? It is the Community. It is no help for the noble Lord, Lord Whitty, to say, "Ah, but we have the Luxembourg Court of Justice as a long stop". I have not seen the Luxembourg Court of Justice save a single leg bye in the whole of its existence. I do not think that those of us who are worried about the relentless progress of the European Union towards the superstate at the expense of national sovereignty can accept any of the clauses in this protocol.

The noble Baroness, Lady Williams, went further. She said that if national legislation can provide for it, it will. The evidence is that it will not. I thought that the noble Baroness went far even for her when she said that the Commission was now being a good boy and indulging in consultation all over the place. If that is so, perhaps I may ask your Lordships to read the first Starred Question on Monday of this week. The Government Front Bench were forced to admit that the Commission is refusing even to produce a cost-benefit analysis on its intended destruction of the London art market. If the Commission is to be welcomed, like my noble friend Lord Tebbit, into the Kingdom of Heaven as a sinner that repenteth, why are we troubled with a potential directive on buses? The Community wishes to take away from us the good old double-decker and the British mini-buses. They are under definite threat from Brussels at present. Why does it want to destroy our system of take-overs which makes the City world famous? I could go through a long list of British interests which are being interfered with. They are not just nooks and crannies; I refer to major industries.

The noble Baroness sought to advance some statistics to demonstrate that the Commission is being a good boy and is not increasing the large numbers of statistics. I was grateful to the noble Lords, Lord Monson and Lord Stoddart, who knocked that argument firmly on the head, indicating that the numbers of the most anti-democratic element of the Commission's activities, the regulations, are increasing strongly.

The noble Lord, Lord Wallace of Saltaire, could not resist advancing the old chestnut: a comparison with our membership of NATO, saying that we lost our sovereignty to NATO. Those who advance that old chestnut never answer the question. If we have decided to share our sovereignty with NATO, for very good reasons, we are at least free to leave it whenever we wish. I do not think that question was answered. The Minister did not cover it. There is an exit clause in our arrangements with NATO. There is no exit in the juggernaut of the European Treaty of Rome. Perhaps

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I may remind noble Lords that it is NATO which has kept the peace in Europe since the last war. Any pretence that the European Union has had anything to do with that is entirely fallacious.

The noble Lord, Lord Whitty, took us into philosophy, and, not being either a lawyer or a philosopher, I lost him. However, he said that the European Union is based not on the concept of a unitary state, but on the treaty. I agree with him. But it is the treaty, without the exit, which contains this provision for qualified majority voting where, as I mentioned in my previous remarks, we have already ceded vast areas of our national sovereignty. The Amsterdam Treaty devours another 34 areas of it.

The noble Lord also said that the Conservative Government have never pretended that the subsidiarity clause was about a repatriation of powers. We did hope that to be so in good faith. My right honourable friend Mr. John Major thought we could repatriate 25 per cent. of all legislation. Indeed, the Conservative Government's attitude to growing flexibility arrangements was designed to effect repatriation in due course.

Finally, the noble Lord, Lord Whitty, was boxed into the well known position of saying that the amendment is not necessary. We all know that to mean that we have won the arguments but the Government would rather that we did not press the amendment. He referred to the subsidiarity clause as a dog which does not bark. I believe that it is time we discovered whether the dog will ever acquire the art of barking. In order to do so, I beg leave to test the opinion of the House.

2.4 p.m.

On Question, Whether the said amendment (No. 1) shall be agreed to?

Their Lordships divided: Contents, 70; Not-Contents, 90.

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