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Lord Pearson of Rannoch: I hesitate to embarrass my noble friend on the Front Bench who has done his best to defend the previous government's position on the introduction of subsidiarity. Indeed, I have just noticed a noble Lord leaving the Chamber. I am not surprised. He was a member of that Front Bench at the time when we spent many hours locked in combat over the Maastricht Treaty in 1993. I must point out to my noble friend that in his quote of Article 3b, as it was, of the original Maastricht Treaty, he missed out the vital 10 words which start the subsidiarity clause and which give the game away as to the whole intention of the clause. That is not in the least bit contradicted by the amendment we

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now see before us on the protocol on the subsidiarity provisions of the Amsterdam Treaty. The intention is merely confirmed.

To explain this point fully and to put it yet again on the record in your Lordships' Chamber I shall read the start of Article 3b, as it was. The vital 10 words are,

    "In areas which do not fall within its exclusive competence".

It then continues:

    "the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community".

A question which I first asked in a debate in your Lordships' Chamber on the Maastricht Treaty before it arrived here, in February 1993--many other noble Lords who have doubts about the entire European exercise have been asking the question steadily ever since--was: who decides which areas fall within the "exclusive competence" of the Community?

The answer is, and always has been, "the Community". That is merely confirmed with knobs on by Protocol 30, the protocol on subsidiarity in the Amsterdam amendments to the Treaty of Rome. I will not weary your Lordships by reading them out again. They have been fairly quoted today. However, I say to the noble Lord, Lord Grenfell, who prayed in aid paragraph 4 of the protocol, that the extract he quoted from that paragraph confirms my point exactly. When I ask who decides what is and what is not within the exclusive competence of the Community, the answer has always been the Community, not the nation states. From paragraph 4 the noble Lord quoted as follows:

    "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".

But in the charge of whom? Who decides? The answer remains "the Community".

It is perfectly simple; the whole business of subsidiarity has always been a fraud. It is a fraud now. It is confirmed as a fraud in the Amsterdam Treaty and we should not look for any form of succour or defence for our national sovereignty from it.

5.15 p.m.

Lord Simon of Glaisdale: It is with great trepidation that I intervene in a debate on the various treaties which is being carried on by acknowledged experts who have been assiduous in their attendance in the debates. I do so because I saluted with enthusiasm the inclusion in the Maastricht Treaty of the word "subsidiarity".

The noble Lord, Lord Beloff, said that that word is new. It may be. If it was not in the vocabulary when he was teaching, it is undoubtedly new. But the idea behind it is not in the least new. It has been a matter of consideration by everybody who has been concerned with the science of government since the days of the ancient Greeks.

Subsidiarity is a perfectly simple idea. It means that no decision should be taken by any decision-making body which cannot reasonably be taken by a decision-making body which is closer to the person who

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is affected by the decision. For example, that principle was argued over between the confederationists and the federalists at the time of the American revolution.

I may say that I speak with diffidence in the presence of the noble Lord, Lord Beloff, since his preface and explanation in his edition of the federalist papers where it is a locus classicus. But it is not only concerned with federalism and confederation. Where shall the power lie? We have had to consider it in connection with our own local government from the days when local government stood up against central government--or perhaps it would be fairer historically to put it the other way round.

The question must be asked: who then decides? It seems to me that there is no alternative except to say that it is a court of the institution which decides how the principle will affect in any specific situation. In saying that, we must bear in mind that any institutional court is a centralising body. We must be on our guard against that. The European Court, like all similar courts, is a centralising body and so of course is the Commission. Like any body exercising power, the Commission has the greater power. That is why power corrupts. It corrupts, first, by creating a desire for greater power.

So we have two bodies--a court and the Commission--which will be trying to reverse and hold back the principle of subsidiarity. We saw it immediately after the Maastricht Treaty. It had been referred to in the memorandum which was designed to try and mitigate the inclusion of the principle which I venture to submit to the Committee.

What then should our Government be doing? They should be using all their powers to insist that the principle of subsidiarity is observed not in general but from case to case. In doing so they will be up against the two centralising bodies which I have mentioned, but they can still have an effect. I hope we shall hear from the Minister that that is what will happen.

Lord Pearson of Rannoch: Before the noble and learned Lord sits down, can he tell the Committee how he thinks that the British Government, with the best will in the world, can overcome a qualified majority vote which goes against them in this matter, as such votes usually do?

Lord Whitty: This has been a quite fascinating debate. It has been almost a consensual debate in certain respects in that everyone in the Chamber reflects what their view of subsidiarity is and thinks that we should have more of it.

The general difficulty that we have had with the concept since it was first introduced at Maastricht is that everyone has some concerns about the way in which European law is being made. They are not quite clear who ultimately is responsible for it and they had hoped that the words in the Maastricht Treaty would help to sort out more clearly and mechanistically how subsidiarity applied. I think it is true to say that everyone feels some disappointment that that clarity has not yet emerged.

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Part of the reason is that we are not dealing with either a centralised state or a federal state, as the noble Lord, Lord Beloff, said; we are dealing with something that is organically changing in the light of negotiations between a number of independent member states, as the noble Lord, Lord Beloff, and the noble Lord, Lord Wallace, in unusual accord, seemed able to describe the European Union. In those circumstances we have to accept that an old medieval philosophical concept is a little bit of a jelly and quite difficult to apply in specific circumstances. Nevertheless, lying behind that is a very firm political intent by those who negotiated the Maastricht Treaty and by those who negotiated the Amsterdam Treaty.

Unfortunately, it is also true to say that some of the aspects of subsidiarity referred to here, particularly by my noble friend Lord Stoddart, with whom I have some sympathy, are somewhat broader than those which were incorporated in the Maastricht Treaty and which have been built on by the Amsterdam Treaty. At the end of the day, interesting discussion though this is, we are here at the Committee stage of the Bill and we have to look at the words that are changing as a result of the changes negotiated at Amsterdam. It is therefore important that we go back to those words.

The subsidiarity principle introduced at Maastricht states, as other noble Lords have said:

    "In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community".

The third paragraph of Article 3b goes on to say:

    "Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty".

That is the proportionality principle. So Maastricht had set out those general principles of subsidiarity and proportionality but it was felt that it did not deal adequately with their application and that detailed guidelines were necessary. That is why we got the Edinburgh guidelines, put forward by the previous administration and supported by the then Opposition. Those guidelines set out detailed procedures for the institutions to follow to ensure that subsidiarity was properly adhered to.

At the intergovernmental conference prior to the election the previous government had argued that it was important to write the details set out at Edinburgh on the substance and the application of subsidiarity into the treaty itself in a legally binding and detailed form. We, as the Opposition and subsequently as the Government, agreed with that. When we entered the IGC negotiations last May a draft of the subsidiarity protocol was already in the treaty text which had been reached in draft by that stage. I must pay tribute to the Opposition for their part when in government in achieving that text. I therefore hope that they will welcome the outcome.

What I cannot quite understand is how the noble Lord, Lord Moynihan, can say today that that text is weakening the previous application of subsidiarity which was written into the Maastricht Treaty. I can see,

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as many noble Lords have indicated, that they may well wish that the words were stronger in the Amsterdam Treaty but I cannot understand the concept that they have weakened the position. They are based on the initiative at Maastricht but they are explicitly taking into that what was previously regarded as a negotiating triumph by the previous government at Edinburgh.

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