Treaty of Maastricht: Article 3b (Hansard, 8 July 1992)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, as the noble Lord well knows, it would not be customary to publish detailed legal advice given to the Government. The interpretation placed by Her Majesty's Government on Article 3b, as with the interpretation of any other text, is to give the full effect to the words used in the article.

Lord Bruce of Donington
My Lords, I am most grateful to the noble and learned Lord for that completely unambiguous Answer. Is the noble and learned Lord aware that for the past six months Her Majesty's Government have been claiming Article 3b, as incorporated into the Treaty of Maastricht, as their greatest victory, justifying all the other clauses which have a rather adverse effect upon the United Kingdom?
Is he further aware that under Article 177a of the Treaty of Rome, the Government have the full right to ask the European Court for a ruling on the interpretation of the law? Will the noble and learned Lord indicate whether Her Majesty's Government, in circumstances of considerable controversy, have yet taken the precaution to seek a ruling from the European Court?

§ The Lord Chancellor
My Lords, it would be fair to say that, as is the case in courts of law in this country, it would be inadvisable to pose to the European Court hypothetical questions. Therefore, if necessary, it would be appropriate to seek a ruling on the matter if and when the subject became a live one in a particular case.

§ Lord Hailsham of Saint Marylebone
My Lords, does my noble and learned friend agree that the real question about Article 3b is not primarily a legal one, although there may be difficulties of interpretation, but whether we are better off with it in than out of the treaty as it is to be amended? Does he agree with me that we are better off with it in?

§ The Lord Chancellor
My Lords, my noble and learned friend asks me an important question. I believe that, in order to answer it, one must have an 1140 appreciation of what Article 3b means. I believe that I have such an appreciation and, on that basis, I answer his question in the affirmative.

§ Lord Stoddart of Swindon
My Lords, I shall have to reflect on that. However, is the noble and learned Lord the Lord Chancellor aware that on 1st July a French official said to the Independent newspaper that in his view subsidiarity is a federalist concept? Is he further aware that, during the progress of the Single European Act, we were told that it was merely a matter of freeing trade? Under that Act we have now found that it is possible for the Commission to decide and to legislate on a wide range of issues, including employment and taxation. Should we not beware as regards Article 3b that we are not caught out again?

§ The Lord Chancellor
My Lords, I have no particular responsibility for advice tendered by French officials. However, it is true that a wise federation would adopt the principle of subsidiarity in distinguishing between its legislative organs as, for example, on the one hand the organ of the federation and, on the other, the organ of the individual states. However, the principle is not confined to a federal situation and I believe that it is a principle which applies perfectly well in the community of nations which we have in Europe. I believe that the application of that principle will protect, so far as that is appropriate, against the kind of situation which the noble Lord, Lord Stoddart of Swindon, has in mind.

§ Lord Renton
My Lords, I fully accept what was said by my noble and learned friend Lord Hailsham in his supplementary question and the answer given by my noble and learned friend the Lord Chancellor. However, is my noble and learned friend aware that doubts have been expressed as to the definition of subsidiarity and as to whether the courts, in applying that term, will find themselves unable to modify the Treaty of Rome, the 1972 Act and the Single European Act in the way that many people have been led to hope will happen? Therefore, will he take steps during the time of the UK presidency of the Council of Ministers to have that doubt resolved?

§ The Lord Chancellor
My Lords, it is possible to express doubts about most legal texts but that specific text is one which can give rise to practical precautions. During the United Kingdom presidency we intend to take forward a programme for ensuring that in the legislative procedures of the Community due regard is had to that principle, and that either action will not be initiated or, if initiated, will not be carried on unless it accords with it. In the longer term we intend to look at existing legislation from that point of view to see whether or not it offends against that principle. 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.

§ Lord Cledwyn of Penrhos
My Lords, can the noble and learned Lord confirm that the concept of subsidiarity is now to be reviewed by the Commission, together with all existing European Community legislation, in terms of the redefinition of that 1141 concept? If so, does he not agree that it is a huge task which will take a considerable time and can he give the likely timescale?

§ The Lord Chancellor
My Lords, the question is not so much one of reviewing the definition as one of seeking to put it into practice. The first step is to put it into practice in relation to proposals for legislation. I understand that that is what is being developed. Practical effect will therefore be given to the principle in relation to forthcoming proposals for legislation. The intention is that a report on that aspect will be prepared in time for the Edinburgh Summit towards the end of the year. It is an important place and therefore it will be a important summit.
With regard to existing legislation, as the noble Lord, Lord Cledwyn, said, it is a much larger task and will take longer. We hope considerable progress will be made on that matter in the course of 1993.

§ Lord Marlesford
My Lords, is my noble and learned friend aware that there are real fears that the admirable principle of subsidiarity will be misused by certain countries to introduce regulations which will erect new non-tarriff barriers, thereby vitiating the whole principle of the Community? Is my noble friend confident that during the United Kingdom presidency the definition will be defined in such a way that that does not happen?

§ The Lord Chancellor
My Lords, again, it is possible to misuse even the best principles. I do not believe that it is possible to erect the kind of difficulties referred to by my noble friend on the basis of the subsidiarity principle. The principle allows action to be taken at Community level where that is necessary to attain the objectives of the Community, and therefore if necessary to overrule obstructions that individual member states may seek to erect to prevent the attainment of those objectives.

§ Lord Stallard
My Lords, does the noble and learned Lord the Lord Chancellor agree with the sentiment expressed by the noble Lord, Lord Mackenzie-Stuart, in his letter to The Times? He said that the wording of Article 3b is "gobbledegook".

§ The Lord Chancellor
My Lords, I must sayzx that I understand the article better than the letter. To satisfy myself on that point I looked at one of the Oxford dictionaries—I felt that that was an authority which your Lordships may find acceptable. It defines "gobbledegook" as, Pompous or unintelligible…jargon (probably imitation of turkey cock)". As I read the article over to myself I do not believe that I was emitting sounds that could possibly be regarded as an imitation of a turkey cock.

§ Lord Jenkins of Hillhead
My Lords, will the noble and learned Lord accept that, while I feel some doubt in regard to his proposition that important summits necessarily take place in important places, he has nevertheless given a series of answers of remarkable wisdom and clarity in relation to the obfuscating nature of the subject?

§ The Lord Chancellor
My Lords, I am extremely grateful to the noble Lord, Lord Jenkins of Hillhead. I believe that it is an extremely important subject. Obfuscation does not serve our national or Community interests.

Lord Bruce of Donington
My Lords, is the noble and learned Lord aware that the Question on the Order Paper does not deal with the interpretation of the word "subsidiarity", to which a good deal of attention has been directed? It refers to the area within which subsidiarity should apply. Will the noble and learned Lord re-examine Article 3b in the light of my remarks? Will he accept from me also, with the greatest possible respect, that I cannot share the sentiments uttered by the noble Lord, Lord Jenkins of Hillhead, in regard to the answers of the noble and learned Lord?

§ The Lord Chancellor
My Lords, there can be little doubt that the Question asks, what legal advice they [Her Majesty's Government] have received on the interpretation of Article 3b"— to which my answers were directed— proposed by the Maastricht Treaty as an addition to the Treaty of Rome, and its enforcement". It is the prerogative of the noble Lord, Lord Bruce, to disagree with the noble Lord, Lord Jenkins of Hillhead. However, the noble Lord, Lord Bruce, will understand on which side I stand.