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Baroness Crawley: My Lords, I remind noble Lords that speaking in the gap means four minutes each.

6.12 pm

Lord Woolmer of Leeds: My Lords, I thank my noble friend. I join those who congratulated the noble Lord, Lord Grenfell, the chairman of the Select Committee, on bringing the matter forward for debate and so elegantly introducing it. Like other noble Lords, I agree that proportionality and subsidiarity are almost indivisible. I refer to Professor Weatherill's excellent written evidence and oral evidence, in particular his reply to question 10 in the 14th report, where he deals with this matter.

I would like to enter a note of qualification: the yellow card issue is a bit of a red herring. The European Union is a union of member states. Governments represent member states and act on behalf of national states, not national parliaments. We need to think carefully before we are deluded about this, pursuing something that can never realistically work. I think it inconceivable that a third of the national parliaments—bicameral, in most cases—will disagree on a point of constitutional substance, on subsidiarity, with their government. I accept that constitutions can have something in for the inconceivable, and rightly so, because one never knows.

For me, the question about subsidiarity is whether the relationship between member parliaments and their national governments is robust on subsidiarity. That has two elements. First, in our own House, are we really in a position, in resource terms, expertise and timeliness, to examine rigorously what could lead to a legal challenge in the European Court of Justice on the issue of subsidiarity? The answer may be "Yes" in
 
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some sub-committees but not in all. Are we properly structured and resourced to deal with that in a timely manner?

Secondly, are our views, ideas and thoughts sufficiently robust so that we can have a dialogue with the government of the day about the criteria of subsidiarity and whether there is agreement between this Chamber and the government, not only on significant subsidiarity—we are all against sin—but on what that actually means when you come to examine legislation? In other words, as with anything in life, ensuring that things happen is a matter of relationships between key players. The government and parliament of a member state are the key players who can form, for example, a British view.

If we simply did not agree with the Government, we would get nowhere. Quite apart from the Realpolitik , I should say to the noble Lord, Lord Kerr, I cannot imagine, except in a hung parliament, that the House of Commons would vote down the government of the day on such a constitutional issue. The House of Lords would have to think carefully about that kind of thing. The starting point for me is relationships with one's own member state government. We are not robust enough about that, and there is not sufficient working agreement on what it means between our own Government and both Houses of Parliament. That is my position.

The value of this kind of debate is that it reminds the House about the importance of scrutiny. Although subsidiarity, like vires, comes first, scrutiny is about much more than that. It is all the other elements—the conduct of impact assessments, consultation, whether any action is required, whether framework directives are better than detailed directives—that are important issues. It is not a matter for debate today, but the public and certainly the business community and my committee on the single market are concerned about the other scrutiny issues. We have to make more progress with the Government on those issues, as well as on subsidiarity.

6.16 pm

Lord Dykes: My Lords, the noble Lord, Lord Woolmer, virtuously kept to the time allowed, while the noble Lord, Lord Kerr, did not. That showed an unusual lack of discipline, which we normally expect from the Foreign Office. I hope the noble Lord will not mind me saying that that was symbolic of the constitutional treaty document, which was over-long, excessively boring and intimidating for those who had the chance to read it thoroughly, and was never properly explained, except in one or two countries, such as France, where excellent documentation was distributed. Maybe, if anything is revived in future, the lessons will be learned and we will have something that is much more user-friendly for the ordinary citizens of the European Union, thanks to the Maastricht Treaty.

These reports taken together are impressive documents indeed, and I echo previous thanks given to the noble Lord, Lord Grenfell, and his colleagues for a really high-quality report, although being a new Peer
 
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I have not read that many. The follow-up was high-quality, too, given the difficulty of the surprise disappointments on the constitutional treaty.

One of the great but ironic disappointments of the decline of the projects for the new constitution was the concomitant fading of the radical set of new proposals to deal with the Community's decision some years before, both to strive to do less legislation anyway, but to do it better, and to weed out redundant legislative material at the same time; and also to respond to the growing call for a new subsidiarity preoccupation, even from European enthusiasts. These efforts went side-by-side with the much longer efforts of the various members of COSAC in the member states' parliaments to improve their own scrutiny procedures. I congratulate the noble Lord, Lord Grenfell, personally on his exercise on the COSAC UK presidency, which has been extremely successful.

The unhappy occasions when member governments were deciding new items without their parliaments being properly consulted has already materially declined in more and more national parliaments. That is a good start; and although various scrutiny suggestions made by MPs and Peers in the UK were at the outset often the preserve of Euro-sceptics seeking to sabotage or at least delay intrusive EU legislation, the pro-Europeans quickly realised that effective scrutiny was a wholly legitimate activity and would also reassure thinking public opinion. The nationalism in this country has come from other things, not because of these complicated matters.

The new subsidiarity mechanism was to some extent a brand new concept, much deeper in constitutional and functional terms but, strangely enough, some kind of continuity item from the past stream of efforts described earlier. I feel strongly that the EU Committee needs our profound gratitude for the formulation of some ingenious mechanistic proposals, which are actually more convincing now than they were originally when the constitution looked as though it might be ratified by France and Holland as well as by many others. This has been helped by the subsidiarity mechanism's status as an annex to the treaty as a new protocol. It needs to apply only to those instruments where shared competency arises, as we know. I agree strongly, too, that this new mechanism, if agreed, should be kept separate from the existing scrutiny reserve system, despite the latter often not functioning, frankly, very well.

It is very compelling to prefer a vote by the whole House on the very special step of raising an important subsidiarity objection, but would that be practical, bearing in mind the pressures on parliamentary time in both Chambers?

However, we, as Euro-enthusiasts, particularly in the Liberal Democrat Party, know well that these developments have been adversely affected by the temporary lapsing of the ratification procedures. Although 15 countries have now ratified the treaty, we are quite sure what is going to happen. I suppose that the UK will be one of the last states to ratify it. The
 
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treaty is definitely on hold here. Several governments have formally suspended their processes anyway and we have done likewise.

However, page 5 of the follow-up report states that the Government are making enquiries with the other members on whether the spirit of the subsidiarity protocol could be implemented. I ask myself mischievously: does it have to be just the spirit? Could it be the substance? Could there be a small protocol treaty? Bearing in mind that that would need an intergovernmental conference, perhaps the answer would be no, but the stronger the form in which it is revived, the better it would be for all concerned.

I am glad that the Government have agreed with the yellow card system, as far as I understand it anyway. I am not so sure that the six-week period will always work satisfactorily without making our already complicated procedures even more so. The intervals created by the delays in ratification provide the time perhaps to reflect on a more tangible, safer approach. That was acknowledged in the reports.

The question of a second dose of subsidiarity testing is also rather worrying. If a piece of legislation is substantially changed by further ministerial and other negotiations, will that also come back to the relevant parliaments for further consideration? The Government are right to say that that would be impractical.

I welcome the Government's soothing comments on what they would do to try to make the six-week timetable feasible, but, as I said earlier, I still have my doubts. There are other problems and headaches involved in trying to get these complex new procedures right, and it is to the credit of the committee of the noble Lord, Lord Grenfell, that a lot of very interesting and relevant suggestions were made in the original report, HL 101, which, because of its quality, will not be subject to the fate of some of the items that are put into the metal casket on the television programme "Room 101".

I assume that even if the treaty is not fully revived, because circumstances are too problematical, there is a will—indeed, the Government have confirmed it in writing—to formulate some kind of effort. We must wait on events, but the reasonably regular use of the subsidiarity test on important legislative documents launched by the Commission would serve the whole Union well. As the noble Lord, Lord Kerr, said, we can go ahead on these matters anyway.

I shall refer briefly to Article 8 and the ECJ methodology and involvement. They are complicated issues even for clever lawyers, the noble Lord, Lord Neill, included. Box 3 needs constant reappraisal, as do the important sentiments expressed in paragraphs 217 and 218 on page 41 of HL 101. That matter needs to be looked at again.

If subsidiarity arguments have received fairly short shrift, with no examples so far of any measures being overruled or struck down by the court, this poses uncertainties if these proposals are revived in one way or another. Will the Minister therefore confer further with the law officers in due course to ascertain the
 
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scope for modernisation of this subject, in the sense of a level field of symmetry between approval and disapproval in the future? If the legal parts of the separation of powers are to be deployed, it can serve the European citizens in all the member states with an objective justiciability which gains confidence as the cases unfold in the long-term future. We will then begin to make substantial progress, because it is a legal as well as a political matter. The court needs to be "neutral" in this deep sense, without neglecting the constitutional obligations of the treaty or treaties.

I was impressed by Professor Wyatt's evidence to the committee. It reminded us, fairly, that in the Union's history so far, the subsidiarity principle has been offered only scant or token attention. I refer to what he said in paragraph 1 on page 3 of the extract of minutes of evidence. Will this not also mean that we should not become over-anxious about these matters? There will be many occasions when the question of subsidiarity will not arise anyway because of the primordial examination of the subject.

Paragraph 2 explains the realpolitik—to use the trendy term of this debate—of how member states have operated in past instances. Professor Weatherill reminded us in his evidence that legal and political subsidiarity are two different animals, but they come together in a practical way. If the system is launched eventually, a formal and informal consultation process between a coterie of member states, as Professor Wyatt suggested, would presumably be the approach that the Government too would see as a natural step forward.

I turn briefly to the evidence offered both orally and in writing. We had the interesting offerings of our own distinguished Liberal Democrat colleague, Mr Andrew Duff MEP, who is an expert on the constitution. He is a well known enthusiast for communitarian common actions. He criticised the six-week timetable—especially with the two Houses here jostling each other for opinion-giving. As we have said, COSAC also felt that that was too short a time. Moreover, Andrew Duff clearly favoured the Commission's own test of subsidiarity rather than have national parliaments deal with these matters. I thought that that was a very disappointing stance to take.

More enthusiasm by citizens for Europe is created in practical terms if there is full involvement by national parliaments. I preferred the approach taken by the noble Lord, Lord Harrison, in question 96, as it better served the will of most members in that report creation. I am thinking of the other place and this Chamber together. However, Andrew Duff was able to reassure some here, I assume, when he described how the arrival of the UK, Denmark, Sweden, and now many of the new countries in the EU 10, would continue to sharpen the sift through which all proposals for legislation must be put.

We are confronted with a number of other complicated problems that I do not have time to go into tonight. This whole field is a practical matter rather than one of saying, "We have done our report
 
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and therefore we must stick to everything that is in it"—and by that I mean no discourtesy to the people who wrote it.

Should countries involve themselves at the much earlier White or Green Paper stages through some kind of formal processes? Perhaps mercifully, with the rethinking time that we have now, the system can be considered again. It is a complicated matter and it is better not to rush it. Like the period of reflection on the constitution itself, this rethinking time gives us an opportunity. Local and regional government could be mentioned as well. They need a place in the sun, but I do not have time to refer to that.

I conclude with the noble and sensible words of Article 6 of the Amsterdam Protocol, quoted on page 10 of the follow-up report of 30 November:

"The form of Community action shall be as simple as possible . . . The Community shall legislate only to the extent necessary. Other things being equal, directives should be preferred to regulations and framework directives to detailed measures".

With that in mind, we can engage the citizens of all the member states and the national parliaments fully. We have taken a lead in that with one or two other national parliaments. There is more to be done, but there is a bright future for Europe if everyone gets together.

6.26 pm

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