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Lord Wallace of Saltaire: My Lords, it is an unusual experience to be in debate quite so late on a Thursday evening. I had hoped to be in Saltaire by tonight in order to drop in at the Yorkshire Liberal Democrats' Christmas party in Leeds on the way. Some of these things have to be abandoned. However, this is an important issue for national parliaments. I welcome the report, which is very much of the quality we would expect from a House of Lords committee. It is extremely important that, even without the treaty, we move to strengthen the role of national parliaments.
As someone who has worked on the history of European integration, I recall that when Jean Monnet designed the original European Coal and Steel Community, he did not regard the involvement of a consultative parliamentary assembly, let alone that of national parliaments, as important. He had had enough of the French National Assembly trying to interfere with national planning and hoped that he could get away from that sort of politics, replacing it with rational administration. Happily we have moved on since then, but the weakness of national scrutiny within most parliaments has been marked. The extent to which national parliaments were engaged indirectly through representation in a nominated European
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parliament left a gap when we moved to the directly elected European Parliament. For several years in many parliaments, including our own House of Commons, there was little prestige in being involved in European scrutiny and certainly very little co-ordination among national parliaments to make sure that careful scrutiny was provided.
In its early years, COSAC was not very effective. My own early experience of it, as the chair of a House of Lords European Union sub-committee, was that we ate extremely well but that our conversations were not always particularly productive. I hope very much that COSAC is now becoming much more effective. The provision of national parliamentary offices in Brussels is also helpful in that it provides the mechanism for easy co-ordination and more rapid communication between Commission proposals, national scrutiny and learning what other parliaments may be doing.
We now have the Declaration of the Protocol of the Treaty of Amsterdam reprinted in the second of these two reports, and we have the text of the unratified constitutional treaty. I strongly agree with the report. This is an area where we should move ahead without ratification. While I regret the non-appearance of the noble Lord, Lord Pearson of Rannoch, who would have told us how wicked this would be, one has to recognise that even if the European Union did not exist, in a global economy with increasing trans-border travel, crime and trans-national corporations, the problem of remote governance above the level of the nation state and how we attempt to keep that accountable would continue to exist. Within the European Union we should attempt to provide accountability as far as we can.
Subsidiarity is a political concept, not a legal one. In any system of multi-level governments, politics revolves around whether or not issues should be handled at one level or another. Look at the United States—the whole history of the United States. When the Scottish Parliament was set up, look at the extent to which the Cardinal Archbishop of Glasgow immediately suggested that some issues such as abortion should be handled immediately by the Scottish Parliament without apparently being aware that the Irish Government had already got a deeply obscure clause into the Amsterdam Treaty to stop abortion law being handled at the European level.
Subsidiarity and multi-level governance are always going to be highly contested issues. I note the quote from Professor Stephen Weatherill, in paragraph 79 of the report, stating that there had always been a centralising tendency in the Commission and the Brussels institutions. As a past member of your Lordships' own European Union Committee, I had found that some noble Lords had not always wished to ask the question: is this something which the European Union should be doing?
The noble Lord, Lord Grenfell, may well remember a sub-committee plunging into discussing the Commission's proposals for the harmonisation of blood alcohol levels at the European Union level, even though some members of the full committee—myself
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included—wished to say that that was absurd and that the issue should have been left to national governments or even below.
We have to accept that subsidiarity is a two-way street. Those of us who wish to see a more effective European Union think that there are some things that are better done at the European Union level—stronger foreign policy co-operation, stronger co-operation against trans-national crime, closer co-operation in border management. But we need to take Brussels out of detailed regulation on social issues, working time and the like. When I was chair of the sub-committee I conceived a particular disagreement for the social affairs director-general of the Commission who clearly believed that more and more social affairs and regulations should be harmonised and centralised in Brussels because Brussels knew better than national governments. That is part of the Brussels belief against which we have to fight.
Subsidiarity is not just a test that we should use against Brussels. It would be useful if Her Majesty's Government would think about issues of subsidiarity within the United Kingdom, not only about the Scottish Parliament but perhaps about allowing local government to have a little more autonomy than it is currently granted every now and again.
How do we move forward? Here again the report is absolutely right. We should start as early as possible—the six-week period is after all extremely short. We need to monitor proposals as they move through the Brussels institutions to make sure that as proposals change they do not become more centralised. We should accept that this is a special procedure for your Lordships' House, alongside the existing sub-committees which do different but extremely valuable work. As paragraph 95 states,
We should as a Chamber operate autonomously from the House of Commons, although as far as possible in liaison with it. We should have close communication with other parliaments through COSAC and through our commonly sited offices in Brussels and—for this as well as for other reasons—we should develop closer co-operation with British Members of the European Parliament which is something that both Chambers of the British Parliament have been deeply reluctant to do.
Lastly we should, as stated in paragraph 25, move rapidly towards introducing this mechanism. It states that,
"even if the Constitutional Treaty does not enter into force, the provisions relating to national parliaments and to subsidiarity can and should provide a stimulus to greater and more effective scrutiny by all national parliaments in the EU".
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Lord Harrison: My Lords, I, too, thank the noble Lord, Lord Grenfell, for chairing the committee and presenting the report today. It has many good points. I also thank the noble Lord, Lord Wallace, who has joined the party here. I can see that he is enjoying himself much more than he would in Saltaire.
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As to the definition of "subsidiarity", I remind your Lordships that, in the abstract, we read:
"Subsidiarity can both act as a check on the need to take action at Union level and ensure that, where it is needed, effective action is taken at EU level".
In other words, it is not just a yellow card and a red card but, on occasions, a green light. Subsidiarity has that positive effect as well.
The abstract also reminds us that subsidiarity,
"ensures legislative action is taken at the appropriate level in those areas in which competence is shared".
I make that point because too often it is misconstrued as taking it to the lowest level, not to the appropriate level. Indeed, Euro-sceptics have leapt on that element in order to be negative about proposals that come from Brussels by that means, as they have in the aftermath of the two "no" answers in the recent referendums on the constitution. But it would be wrong of us to fail to promote the good ideas that were part of the constitutional changes. I understand that the British Government are now proposing more open councils, which is a good thing, and we should resuscitate or bring into being some form of better scrutiny of subsidiarity.
What is the role of the House of Lords in this? It has a role because of the expertise and experience of its members and its established scrutiny committees on European Union affairs. I agree with the report that such scrutiny should run parallel to, not be mixed in with, the scrutiny of substance that we deal with in the reports we produce from the Select Committee.
However, the report also highlights some of the problems associated with trying to develop some of its ideas. We are told that we will need to have improved communications between all the institutions. Can we rely on this? I am not sure. We are told that there will be a six-week turnaround period. But I tried to calculate today when we had a six-week period in your Lordships' House to accomplish this. There are perhaps as few as eight Mondays when, after receiving something from the Commission, we would then be capable of having a free flow of six weeks for our process of scrutiny. We need, of course, root and branch reform of the way in which we do our work here. But what have we done just recently? We have reappointed the four-month break in your Lordships' House and in Parliament as a whole—and the most recent four months took place during the period of the United Kingdom presidency.
Like the noble Lord, Lord Wallace, I, too, have problems with some of our collaborators. We are asked, for instance, whether the Select Committee would pronounce on questions of subsidiarity or whether it would be a decision of the whole House. The whole House is highly desirable, but elements of conflict lie there for the moment. What do we do in relation to the House of Commons? If the House of Commons says "yes" and we say "no" to a proposal, is it a 1-1 score draw? Who has predominance? I suggest that it should be the House of Commons—our job is to advise—but I am not sure that we have said that in the report. Why do we not think of
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establishing a Joint Committee? That would make life quicker and more effective. We talk about consulting other nations and regions within the United Kingdom—and I hope that we can do it—but that will provide some real logistical problems.
We also have as collaborators other parliaments of the European Union, but COSAC, as an institution, is flat-footed at the moment. Again, there are enormous logistical problems in consulting with 24 other member states and I do not think we should disguise from ourselves how difficult that will be.
Other problems include the fact that proportionality has been left out as the dual test that should take place, as the noble Lord, Lord Grenfell, mentioned. This is particularly important for small businesses because sometimes their concerns are not taken into account. We also have problems of understanding that subsidiarity is sometimes a moving target, so when something is going through the parliamentary scrutiny process there can be a change from, say, Article 308 as the legal base in terms of requiring unanimity, to Article 95 with qualified majority voting. The parliament, in this process, may not have caught up with the changes that have been made on the hoof in Brussels as we try to arrive at a decision on these sometimes important issues.
I want to dwell on other potential collaborators in the process of subsidiarity, which we have spoken so little of in this report. Like the noble Lord, Lord Wallace, I identify with the fact that all of them are on the spot, in Brussels with their ears to the ground, listening to those who are thinking about future legislation which might be brought forward. Pre-eminent of those is the European Parliament. There is one perfunctory, lukewarm reference to collaborating better with MEPs and I am grateful for that; we say not just British MEPs but those of other nationalities too. But we ought to be talking to our British MEPs on a daily basis about problems of subsidiarity as legislation and proposals flow into us. They are the best early-warning mechanism that we could have: they are British, they are on the spot and they can speak to us.
We neglect the Commission. It is often thought that the British Commissioner is part of a college and has therefore lost his patronymy, but that is not true. It is part of any Commission that it takes an overall view of the Commission's work and should be able to respond to British requests. The Commissioner and his cabinet are often in a prime position to say what is coming along and we in your Lordships' House should be tapping in there. UKREP is another example. I am glad that the noble Lord, Lord Kerr, is going to speak later in this debate because he is a pre-eminent example of those who are looking at very detailed dossiers and are able to give good advice to politicians about questions such as subsidiarity as well as the substance of any proposal.
There are also the business organisations: UNICE, which has been mentioned by the noble Lord, Lord Haskel, UEAPME, ETU and NGOs—which
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again often have their ear to the ground. The House of Lords should devote more time to those on the spot in order to deal with the question of subsidiarity.
In conclusion, I very much regret some of the comments that we make about the European Court of Justice. Such comments are somewhat jaundiced where we say that the Court will have to take a more critical approach to subsidiarity. Where is the evidence that it has not taken a proper approach to subsidiarity? I am not particularly happy with that remark. It returns to the point that was out most in the debate by the noble Lord, Lord Haskel, which is this. What we have done in this country is to join a single European market. That market has to have rules. It is right that part and parcel of that process is to see how they are appropriately applied in each member state, and that is the role of the national parliament. But we must understand that joining a single market at a European level imposes on us obligations, especially in respect of the 24 other countries in that market, if indeed we are to break down the barriers that impede business in Britain and elsewhere from being successful in producing the jobs and prosperity that we all want.
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