Subsidiarity (Hansard, 3 December 1992)

§ The Minister of State, Foreign and Commonwealth Office (Baroness Chalker of Wallasey)
My Lords, the principle of subsidiarity is already being applied to draft legislation and will be applied to future proposals. Existing Community legislation is being reviewed to see whether the principle of subsidiarity has been infringed.

§ Lord Monson
My Lords, I am grateful to the Minister for that helpful Answer. Even if a satisfactory and unambiguous definition of subsidiar-ity can be agreed upon and made binding and immune to the notorious centralising proclivities of the European Court, something which many eminent lawyers in this country believe to be impossible, does she agree that it would be like shutting the proverbial stable door after the horse had bolted if all existing laws and regulations which interfere in the purely domestic affairs of Community member states were to remain in force?

§ Baroness Chalker of Wallasey
My Lords, in one sense I agree with the noble Lord. The point is that the principle of subsidiarity will apply to all activity, past, present and future, and to all institutions. If we find that things that have been in force for some time are breaking the subsidiarity rule, then they will be dealt with.

§ Lord Barnett
My Lords, last week the Minister gave me the simple answer "yes" when asked whether there would need to be a legal definition. Does her answer today mean that if there is no legal definition, it will not apply to past, present or future legislation in this country?

§ Baroness Chalker of Wallasey
My Lords, it has been made clear that a list of respective member state or Community competencies would be useless for competencies referred to member states. In a speech to the European Parliament some two weeks ago the President of the Commission said that national competence is the rule and Community competence the exception. We intend to see that that is put into practice through the procedures and the criteria for applying the subsidiarity test and the examples that we shall use to test it. If that is not enough, it will be referred to the European Court of Justice.

§ Lord Hailsham of Saint Marylebone
My Lords, does my noble friend agree that there is no more valuable concept in English law than that of the "reasonable man", and that that is totally incapable of legal definition?

§ Baroness Chalker of Wallasey
My Lords, to the most reasonable noble and learned friend whom I know, I can only say yes. The whole point about subsidiarity is that before the Community acts it must in future ask two questions. Is it appropriate to act at all, as opposed to leaving matters to member states? And if so, in what degree of detail? It may not be an exact definition, as my noble and learned friend said, but what appears in the Maastricht Treaty is an important step forward and is a good reason why both Houses of Parliament should ratify the treaty.

§ Lord Stoddart of Swindon
My Lords, does the Minister agree that it does not matter what the President of the Commission says, what she says, or even what the President of the Council says? What really matters is what the court says when a matter is placed before it. Is it not the treaty that will be interpreted by the court and not the mouthings of politicians or bureaucrats?

§ Baroness Chalker
My Lords, I can do no better than repeat something that the noble and learned Lord the Lord Chancellor said to the House on 8th July: I believe that it is a principle which is perfectly enforceable by the European Court of Justice, as it enforces other principles of general application".—[Official Report, 8/7/92; col. 1138.]

§ Lord Campbell of Alloway
My Lords, is there not still considerable scope for discussion between heads of government on the implementation of the principle? Should implementation be by categorisa-tion, which is a political act taken by heads of government and the Council of Ministers without recourse to the court of justice? Or should there be —along the lines just suggested by my noble and learned friend—a formulation of principles, leaving disputes with the Commission to be resolved by the court of justice? Is it right that in the result all past legislation in any event would, either way, be open to review?

§ Baroness Chalker of Wallasey
My Lords, in my answer to the noble Lord, Lord Monson, I sought to explain that the principle of subsidiarity will apply to all activity, past, present and future. What the principle will do—it will be justiciable before the European Court of Justice—is to provide a limit on over-regulation in all areas. The Commission is already taking that principle seriously. It is already doing work for the heads of government meeting in Edinburgh. After the heads of government have discussed what is put forward at that meeting, we shall all be, I hope, a good deal more confident about the matter than some Members of your Lordships' House seem to be at the moment. I do not believe that it is beyond the wit of 12 heads of government, nor the lawyers working for them, to sort this out. It is well on its way to that end.

Lord Bruce of Donington
My Lords, is the Minister aware that in another place on 24th September the Prime Minister said that the Maastricht Bill would not be brought back into another place until the whole scheme envisaged by Article 3b of the Maastricht Treaty and its area of application, together with examples, were in place? Is the Minister aware that nothing is in place, and that the latest effusion—some seven pages of it—from M. Jacques Delors adds nothing to the ambiguity already implicit in Article 3b itself? Will she not therefore have the grace to abandon this whole wretched enterprise which is wasting everyone's time?

§ Baroness Chalker of Wallasey
My Lords, the definition in Article 3b carries a clear presumption of activity at the national level. That is what we want to achieve. That is what we intend to achieve. Although the noble Lord, Lord Bruce, may not at this moment be entirely clear about how it will come out, I shall do my best in the coming weeks to ensure that he is.

§ Lord Boyd-Carpenter
My Lords, how does my noble friend reconcile her thoroughly satisfactory answer with the fact that the European Court is, at this moment, considering whether shops in England and Wales should be entitled to open on Sundays?

§ Baroness Chalker of Wallasey
My Lords, unfortunately something I have learnt over the years is that once a piece of legislative action is in progress, it is difficult to halt it in midstream. If this legislation is at national level—which I think my noble friend Lord Boyd-Carpenter believes, as I do, it should be—then it will be caught by the principle of subsidiarity and what we put into practice.

§ Lord Richard
My Lords, the noble Baroness was slightly clearer today as to what the Government mean by "subsidiarity" and how they see the concept evolving. Can she tell us how many other countries of the Community agree with her?

§ Baroness Chalker of Wallasey
My Lords, I think it only right to wait until the Edinburgh summit to see the exact way in which our 11 partner countries respond to the information which is being provided to them for that meeting. I am sorry if I let the noble Lord, Lord Richard, down the other day. We all have days when we are a little clearer than on others.

§ Lord Marlesford
My Lords, does my noble friend envisage a role for the European Communities Committee of the House and its sub-committees in being able to challenge on the grounds of subsidiarity those measures that come before the committee from Europe?

§ Baroness Chalker of Wallasey
My Lords, my noble friend makes an interesting suggestion. I should like to look at it in detail before I give him either an affirmative or a negative answer.

§ Lord Murray of Epping Forest
My Lords, can we be sure that the noble Baroness will insist that the passion for subsidiarity is not used by some member states as a convenient smokescreen for avoiding their proper responsibilities.

§ Baroness Chalker of Wallasey
My Lords, the noble Lord, Lord Murray, is absolutely right. That is why we have always believed that the principle should, in any time of doubt, be justiciable before the European Court of Justice.