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Lord Pearson of Rannoch: Perhaps I may help the noble Lord as one who did not regard the negotiation at Maastricht as a triumph. The new protocol on subsidiarity specifically removes any possibility that the acquis communautaire could be weakened or diluted by the subsidiarity clause introduced at Maastricht, which is what many people hoped it would do. The specific words are perfectly clear and have been quoted before. They say that


fair enough--


    "particularly as regards maintaining in full the acquis communautaire and the institutional balance."

They give greater power to the court, which we all know is the engine of the treaty. This is knobs on. Subsidiarity means what we said it meant at the Maastricht negotiations of 1993, not what the Conservative Government said or those who thought it might be of any use to us said.

Lord Whitty: The point I am making is that the changes between Maastricht and Amsterdam do not weaken the position. The reference to the acquis communautaire was present to start with in Article B of the treaty on the European Union negotiated at Maastricht but then it was specifically reinforced in the Edinburgh guidelines. Those references to the preservation of the acquis communautaire were there already. We have not gone backwards. We may not have done what the noble Lord wanted but we have not introduced something which is less pro-subsidiarity than the previous text, which is what I thought the noble Lord, Lord Moynihan, and several other noble Lords were arguing.

The Earl of Onslow: Perhaps I may ask the noble Lord what to me is an important question. Can he please give me and the Committee an example of where subsidiarity has actually kicked in and where the European Commission or the court has said, "That is nothing to do with us. It is only to do with you?"

Lord Whitty: There are two categories of that. One is where, explicitly, proposals that the Commission was bringing forward before the Maastricht protocol and the Edinburgh guidelines existed were abandoned on grounds of subsidiarity, of which there are between 15 and 18 examples, which is perhaps not the long list which the noble Earl would have wished. Those would otherwise have come forward had they not been rejected on grounds of subsidiarity. Those are matters that were in the pipeline prior to Maastricht and Edinburgh. Secondly, as the noble Lord, Lord Moynihan, said, the

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totality of primary legislation coming forward has greatly reduced, in part because proposals which would go counter to the principle of subsidiarity have not been put forward by the Commission.

So there is a dog that did not bark in the night dimension to that argument. Nevertheless, the reality is that every proposition within the Commission now has to be subject to the subsidiarity test. No doubt there are people in the Commission who, for whatever motive, are attempting to get round the proposal, but measures are pushed through. This measure has led to fewer and fewer new propositions of competence and law. I believe that that will be a cumulative process. The provision with the acquis communautaire rolls it back in a significant way. Nevertheless, it is true that the acquis communautaire is not a fixed body of law. It can expand and contract. There are no great examples of it contracting at this point. Nevertheless, the acquis communautaire is not a fixed or constantly expanding body of law. Decisions can be made in the Community to reduce the acquis communautaire.

Lord Pearson of Rannoch: The noble Lord said that the acquis communautaire can expand and contract. Can he give any examples of where it has contracted or it is planned to do so?

5.30 p.m.

Lord Whitty: A significant number of transitional arrangements have been deleted from Community law over the years. I am sure that there will be greater ones. Nevertheless, the noble Lord is broadly correct: the total scope of the acquis communautaire has not retreated, but many regulations have been removed from Community law. The new atmosphere arising from the Maastricht and Edinburgh guidelines being applied within the Commission and Parliament, has led to situations which have not materialised which would have done otherwise. I can see that the noble Lord, Lord Pearson, is not totally convinced of this argument, but it is the best that he is going to get at the moment!

The new subsidiary protocol, which includes the Edinburgh guidelines, contains the following. It requires the Community to consider whether an issue under consideration has transnational aspects which cannot satisfactorily be regulated by individual member states; whether action by member states alone would conflict with the requirements of the treaty; and whether action at Community level would produce clear benefits by reason of its scale or effects compared with action at the level of member states.

Moreover, the Commission has to consult widely and, whenever appropriate, publish consultation documents before proposing legislation. All those feeding into that consultation process have in mind the issue of subsidiarity. These principles are gradually bringing about--I agree that it is gradual and not comprehensive--better, more appropriate and effective law-making regulations at European level. Those changes resulting from subsidiarity should not be seen in isolation. They go hand in hand with other efforts that the Community is making in that direction. I refer to the Amsterdam guidelines for improving the quality of

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legislation. I am sure that Members of the Committee will welcome that. There is also the campaign for simpler legislation in the internal market, which I am sure that the business sector will welcome greatly.

So there has been some progress as a result of the subsidiarity principle being written into the process. But it is not a mechanical application and in the present circumstances it cannot be so. The Commission has withdrawn some legislative proposals and it has not come forward with others. I cannot see that the protocol we have adopted as a result of the Amsterdam Treaty in any sense weakens the influence exerted at Maastricht. Since then it has extended gradually through the institutions in order to establish that what is done at nation state or lower levels should be done at those levels and not automatically assume a European involvement in such legislation or other action.

There is a slight tone in some of the debate that because the subsidiarity principle has not worked perfectly we should not pursue it but reject this protocol and therefore the treaty. That is what we would be doing. But this is an important part of the future atmosphere of law-making for the Community. This protocol will help the law-making to work better.

We have to accept that there has been some achievement so far. Those who work in and out of Brussels will have seen that in drafting legislation the Commission has taken a different and often more sensitive approach to national circumstances. The result has been that the amount of primary legislation we have had to consider has gradually fallen. Although that may not have happened in the past year, the amount of primary legislation has certainly dramatically fallen from the years in which concerns about subsidiarity were particularly strong.

The Earl of Onslow: I know that the amount of primary legislation has fallen, but the amount of regulation arising from the primary legislation has increased. So it has just been a different shape rather than a different volume of legislation.

Lord Whitty: That is not the easiest thing to measure. But clearly, once one has primary legislation then regulations flow from it, as with national legislation. The point about the acquis communautaire is that the scope of what should be done at European level as against national level has not increased; the rate of new primary legislation has not increased. In order to carry out that primary legislation there may have been some increase in the level of regulation.

The whole question of law-making in the European Union is extremely complex. But I believe that towards the end of the debate Members of the Committee were addressing the issue that although subsidiarity is not perfect, at the end of the day the question is who decides what is appropriate. It is clear that there is no satisfactory answer for those who regard anything that the Community does with deep suspicion.

Naturally, at the end of the day, the Community will decide what it does within its own area of exclusive competence. But as regards subsidiarity, ultimately there

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must be a role for the Court of Justice but it will be a longstop role. The decisions on subsidiarity will reflect the Commission taking into account the requirements of subsidiarity as regards the proposals for legislation. The Council of Ministers will take account of subsidiarity when it comes to consider those proposals.

The protocol has set out what subsidiarity means for all the institutions and the procedures the institutions must follow during the legislative process. It is true that, in the last resort, the court will be better able to ensure that the subsidiarity principle is properly applied on the firm legal basis of the explicit protocol written into the treaty. In our view that is a power for the court. But it is an advance on the general language of Article 3b of Maastricht and the Edinburgh guidelines which were not themselves justiciable. The Government are confident that the European Court of Justice will implement this protocol effectively in line with the general view across the European Union that the principle of subsidiarity has to be enforced.


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