European Communities (Amendment) Bill

HL Deb 12 July 1993 vol 548 cc74-116

Consideration of amendments on Report resumed.

Lord Bruce of Donington moved Amendment No. 8: After Clause 1, insert the following new clause:

Powers and term of office of the Commission

(". Within 12 months from the coming into force of this Act Her Majesty's Government shall formulate proposals for reviewing—

1. (a) the new areas of competence of the Commission in 1996; and
2. (b) the term of office of members of the Commission under Article 158 of Title II on the Treaty on European Union.").

The noble Lord said: My Lords, before proceeding with the amendment I should like to offer the House an apology for an error that unfortunately crept in to a short contribution I made earlier this evening. When discussing the CAP, I ventured to suggest that it was covered by Paragraphs 35 to 47 of the Treaty of Rome. I should have said Paragraphs 38 to 47. I trust that the House will accept the correction.

In considering the amendment, and the atmosphere within which it may possibly be discussed, I should like to refer briefly to some remarks that fell from the lips of the noble Lord, Lord Elton, who I see is no longer with us, to the effect that the proceedings that have taken place to date were not to his liking and that a reference should be made to the Procedure Committee as to the way in which the House has proceeded.

Lord Hailsham of Saint Marylebone

My Lords, that is irrelevant to the amendment.

Lord Bruce of Donington

My Lords, noises aside again, as usual, from the noble and learned Lord, Lord Hailsham.

Lord Hailsham of Saint Marylebone

My Lords, I was only saying, if the noble Lord will forgive me, that is wholly irrelevant to the amendment that the noble Lord is supposed to be proposing.

Lord Bruce of Donington

My Lords, if the noble and learned Lord will forgive me, I propose to proceed in my own way—

Lord Hailsham of Saint Marylebone

My Lords, subject to the opinion of the House.

Lord Bruce of Donington

—a custom to which the noble and learned Lord himself is well addicted, and often from a sedentary position. That only goes to show what happens when the Government Front Bench gets together with the Opposition Benches. The first thing that occurs to them, after the debate has gone on for any length of time, is to conspire against the Back-Benchers by having the whole proceedings referred to the Procedure Committee. The House should be warned that Back-Benchers are likely to take an unfavourable view of any such reference, and will probably make themselves vocal accordingly.

Lord Stoddart of Swindon

My Lords, I am much obliged to my noble friend for giving way. Is he aware that many of us would welcome such a reference so that we could then put the position and the Procedure Committee could find a better and more satisfactory way of discussing future treaties?

Baroness Trumpington

My Lords, I suggest that we continue with the business.

Lord Hailsham of Saint Marylebone

Hear, hear!

Lord Stoddart of Swindon

My Lords, this is our business.

Lord Hailsham of Saint Marylebone

No it is not, my Lords.

Lord Stoddart of Swindon

My Lords, yes it is.

Lord Bruce of Donington

My Lords, I am greatly obliged to the noble Baroness, Lady Trumpington. The amendment has been moved—

Lord Hailsham of Saint Marylebone

My Lords, it has not yet been moved.

Lord Bruce of Donington

—not just with a serious intent, but with its main purpose to reveal to those Members of the House who may not have had the opportunity to examine the Maastricht Treaty in detail—indeed, some members of the Government themselves have had some difficulty in obtaining copies and reading it—and to draw the attention of the House to the powers that the Commission will have under the new treaty. I realise that I am treading on dangerous ground, because I am referring to the Commission's powers.

We have in the House five distinguished former Commissioners. We have the noble Lord, Lord Thomson of Monifieth, my noble friends Lord Clinton-Davis and Lord Richard, and, of course, although he is not in his seat at the moment, the noble Lord, Lord Cockfield. Since I am going to make some observations about members of the Commission, I wish to say at the outset that I exclude from any comments that I may make about the existing Commission all five of the former Commissioners who are in the House. They could all, had they so chosen, have retired from public life on the pensions that are attributed to their office in the Commission, but instead they have taken the public-spirited attitude of coming here and giving us their time and the benefit of their wisdom. So I trust that any remarks that I may make about the present Commission will not affect them in any way. I affirm straightaway that they are kindly, gentle people who have no thought of obtaining more power for themselves, or more power for the Commission, or of doing anything that could remotely be termed unfriendly to the governments of member states.

I see that the noble Lord, Lord Jenkins of Hillhead, has arrived. He is the most distinguished of them all, for whom I shall reserve some special comment in view of the fact that he was also a Chancellor of the Exchequer in the Government of which I was, and still remain, a supporter.

All powers of the Commission which are taken in the Maastricht Treaty as fresh powers, are of course relative. Weak people can be strong if those with whom they are in contact are weak. I have already explained to your Lordships that through no fault of their own members of the governments of member states—I am talking about the Ministers of all member states—are subject to severe limitations as to their abilities to govern because, of course, they are constrained by their own physical needs in that they need a certain amount of sleep; they need to feed; they need to exercise; and the amount of time that they can spend on the affairs of their own ministries and countries are strictly limited. It must be because—God bless them!—they are all human.

In the same way, when it comes to imposing an additional load upon Ministers of dealing with international affairs which, on their own, are a considerable responsibility—particularly for the Foreign Office and the Prime Minister—and when it comes to dealing with EC affairs, the amount of time that they can spend examining and understanding what is happening around them is limited. It must be.

It is common knowledge that for a number of Ministers, when they go to Brussels, Luxembourg or Strasbourg for meetings, in many cases the first time that they read their papers, upon which they are supposed to talk and which are there for their guidance, is on the aeroplane or in their hotel rooms. That places the Commission in a strong position. I am not saying that it deliberately chooses that position, but, after all, members of the Commission are appointed. They are not elected by anyone. They do not have any constituency chairmen to bother them. They do not even have any Ministers above them to bother them. They are not immediately faced with the threat of dismissal as on the night of the long knives, or anything of that kind. There they are. They are secure. They have the direct purpose of furthering the interests of the European Community.

There is bound to be a temptation—I put it no higher than that—not to be averse to getting more power for themselves and the offices which they occupy. Nature abhors a vacuum. If the Council of Ministers and those attached to it are not fully able to assimilate everything that happens or, for the sake of a quiet life, are susceptible to firm guidance from the Commission, it would be less than human if it did not begin to think that it really mattered; that the members had a right to an autonomous existence exerting power of unlimited character.

On going through the powers of the treaty—and here I address all noble Lords who are impartial—and examining the powers of the Commission and its acolytes under the Bill, it must be said in relation to the member states and the Council of Ministers that they have accumulated very considerable powers indeed. That must give rise to a certain amount of anxiety. We live in troubled times. There is hardly a member state of the Community which is not in some kind of economic or political trouble. Unemployment in the EC is some 17.5 million and is still rising. No governments are escaping criticism. There must be doubt about whether these governments have been governing to their best abilities and for the general benefit of their respective countries.

Some people may believe that all member states' governments are irredeemable and do not know what they are doing. Strictures have been made across party boundaries to that effect. There is not universal approbation in this country for Her Majesty's present Government. Many of us may regret that—I shall not shed crocodile tears myself—but the fact remains that the Government are not at the apex of their popularity. And so it is with other governments. Therefore, there must be a temptation among politicians to think that if some of their powers were taken away from them and given to a supra-national body member state governments would be helped considerably. If anything went wrong they would not then blame themselves but could say, "Of course, this is all the fault of the Community. It is all the fault of the Commission. It is nothing to do with me".

I invite noble Lords only to contemplate that as a situation which is likely to arise. They need not necessarily agree with me. Now let us address ourselves to the powers of the Commission which are taken under the Maastricht Bill and which have not yet been referred to in detail. If noble Lords will bear with me I shall acquaint them with some of the powers. They may have escaped the attention of those who have not had the time diligently to study the treaty. Article 103, which deals with economic policy, states in paragraph 2: The Council shall, acting by a qualified majority on a recommendation from the Commission, formulate a draft for the broad guidelines of the economic policies of the Member States and of the Community". So the Commission is charged with bringing forward proposals to that end. That implies that the 17 gentlemen, who, I believe, used to meet on a Wednesday morning in congenial circumstances and whose qualifications vary, are with their staff capable of doing exactly that. Paragraph 3 of the article states: In order to ensure closer co-ordination of economic policies and sustained convergence of the economic performances of the Member States, the Council shall, on the basis of reports submitted by the Commission, monitor economic developments in each of the Member States and in the Community as well as the consistency or economic policies". The members of the Commission will advise the Council of that.

Paragraph 4 of Article 103 states: Where it is established … that the economic policies of a Member State are not consistent with the broad guidelines referred to in paragraph 2 or that they risk jeopardizing the proper functioning of economic and monetary union, the Council may, acting by a qualified majority on a recommendation from the Commission, make the necessary recommendations to the Member State concerned". Once again, the members of the Commission are charged with producing proposals to that end.

Paragraph 1 of Article 103a states: Without prejudice to any other procedures provided for in this Treaty, the Council may, acting unanimously on a proposal from the Commission, decide upon the measures appropriate to the economic situation". That implies that the 17 commissioners have it within their own brains and competence to make the judgments necessary to produce those measures. And so it goes on.

Article 104c, paragraph 2, states: The Commission shall monitor the development of the budgetary situation and of the stock of government debt in Member States with a view to identifying gross errors". Who are the 17 who are intellectually equipped to make judgments of that kind? They are not all professional economists—

Baroness Seear

Thank God!

Lord Bruce of Donington

Even if they were, that would be a dubious qualification. I could not agree more. They are ordinary human mortals like anyone else and yet they have those powers.

Paragraph 3 of Article 104c states: If a Member State does not fulfil the requirements under one or both of these criteria, the Commission shall prepare a report". Egad it will, and on the activities of various member states! They are going to pass judgment on the economic performance of member states. Who endowed them with the abilities to do that? I do not wish to insult the gentleman in any way because I know him well but I doubt whether the capabilities of Herr Martin Bangemann are up to the task, unless his grasp of economic events has improved considerably since I last had the very great pleasure of encountering him on the European Parliament budgetary committee.

Paragraph 5 of the same article states: If the Commission considers that an excessive deficit in a Member State exists or may occur, the Commission shall address an opinion to the Council". Who is going to help its members to do that? Who or what group within the Commission can set themselves up as being able to judge the affairs of other member states better than the Ministers of the member states themselves?

I could go on, but I shall not. I do not wish to detain the House too long. However, I may have given reasons for some of your Lordships to question the voluntary surrender of powers under the treaty to an unelected body of people of varying qualifications and of varying ages and backgrounds to the detriment of powers of Ministers in individual states.

In addition, there is the knowledge of the power of the Commission. I could give many more instances of additional powers being given to that nominated, non-elected body. An article in the Financial Times today shows what can happen in such circumstances.

The report in the Financial Times is headed: Clarke plans defence against EC charges on budget deficit". It states: The European Commission makes no secret of its desire for the British pound and the Italian lira to return to the ERM". What business is it of the Commission what the British pound or the Italian lira shall do? The officials of the Commission can think what they like privately and can put it in their reports to the Council. There is no reason why they should not do that; in fact, it is their duty. But they wish to go public on it and they have no right to do so. The article goes on: During a recent meeting of the EC's secretive monetary committee, composed of senior Treasury and central bank officials from the 12 member states, several members challenged the UK government's contention that over two-thirds of the budget deficit was due to cyclical economic factors, and would therefore recede with economic recovery". They are appointed people; they are not elected. They are responsible to no one. It is a so-called independent body, but these days it seems fashionable for information to be leaked to the press regarding its opinions about the United Kingdom Government.

The article goes on: Others complained that UK forecasts of a cut in the deficit from 8 per cent of gross domestic products this year to 3.75 per cent in 1997–98 still left the deficit above the Maastricht target of no more than 3 per cent. This underlined that the UK was 'not serious' about Emu, one EC official said". There we have it. The officials are appointed and not responsible to anybody. They are allegedly independent. They even leak information to the press. This is merely one example which I draw to your Lordships' attention. The officials are now so arrogant that, when it suits them—before a critical conference taking place tomorrow in ECOFIN—they believe that they can leak information to the press in order to prejudice the negotiations which are to take place.

The article goes on: Mr. Clarke is expected to argue that it is very difficult to measure how far the deficit is cyclical and how much it represents a structural increase in spending. He will also say the UK convergence plan is more realistic than some programmes put forward by other member states.

The ECOFIN meeting is also expected to discuss plans to improve multilateral surveillance of member states' economies". You can bet officials leaked that also to the press.

This submission is made to your Lordships in good faith. My submission and that of my colleagues is that as a democracy, with an elected government who can be dismissed by the people of the country, we should not give away the powers which were given to that government in the first place. That is happening imperceptibly.

My task is to do no more than to sow a little doubt as to whether it is wise in this treaty to concede so many powers, which are superior to those exercised by our own Ministers of the Crown, to an unelected body which may comprise some very nice people, although not as nice and gentle as the five who sit here, but people who are not averse to furthering their own careers and to seeking more power for themselves, without necessarily any unscrupulous motive but with the desire for power. I submit that we should not countenance that. The British people were unable to see what the treaty contained at the time of the last election because it was not printed and published until 15th May. They should have an opportunity to see what it involves.

Baroness Elles

My Lords, the noble Lord, Lord Bruce of Donington, has given a very fair assessment of the role of the Commission but he has left out a rather important change contained in the Maastricht Treaty as regards powers given to the European Parliament.

The noble Lord and I have both been members of that body, both as delegated and elected members. Whatever we may think of that parliament, the treaty gives it two extremely important new roles to which the noble Lord did not refer and which I believe could alter to some extent the view of the role of the Commission in relation to the other institutions.

Article 158 of the Maastricht Treaty gives a new power to the European Parliament to approve the appointment of the president of the Commission and other members of the Commission. That may seem to be a comparatively minor power. However, for some time—in fact since the beginning—the parliament has had the power to have a vote of censure against the Commission. That power has never been used because the parliament is well aware that had it used that power, governments would have immediately re-appointed the same people. I believe that the new power is one of the most important that has ever been given to the European Parliament because governments will not be able now to re-appoint the same people because the parliament would refuse to appoint a president or commissioners who may have been nominated a second time round. That is the first very important new power.

Lord Harmar-Nicholls

My Lords, from my noble friend's experience of that parliament, what evidence does she have that it would differ as regards the re-appointment of the president and the commissioners?

Baroness Elles

My Lords, I am afraid that I do not quite understand the import of my noble friend's question. Had he been in the recently elected parliament, he would know that it has thirsted for the blood of the commissioners. The power which Article 158 of the treaty gives to the parliament has been greatly welcomed by it. It means that in future it can censure the Commission. It has wished to do so on many occasions but it has known that it would be pointless. However, it has now been given the power to block a new appointment and it will do so. It is not a delegated parliament. The position has changed.

Lord Bruce of Donington

My Lords, since the noble Baroness addressed a series of questions to me I ask the leave of the House to inform her that in the course of a later amendment I shall deal with the activities of the European Parliament. At that time I hope to persuade her that she may be mistaken.

Baroness Elks

My Lords, I am grateful to the noble Lord for that intervention, but as regards what he said about the Commission officials being appointed and nobody having control over them, I do not agree with him in view of the new power given to the parliament.

The second new power, given under Article 173, is extremely important. That power has already been used. The Commission can be taken to the European Court of Justice for lack of competence or for acting ultra eires. That is extremely important because so far it has been impossible to deal with the Commission when it stepped out of line. The parliament is given that power under the treaty and that is extremely important. As I say, the power has been used. It was used to protect the prerogative of the parliament in a case in which the Commission and the Council had joined together so that the Commission was unable to look after the powers of the prerogative of the parliament. Therefore, under Article 173 as amended, a new power is given to the parliament to control much more closely the acts of the Commission than it has been able to do until now.

Further, the noble Lord, Lord Bruce, quite rightly pointed to the role of the Commission which is important. But at the end of the day, the power remains with the Council. Articles 104(12) and 104(13) provide that the Council has the final decision. After all, it is the Executive's role to produce reports, make statements and put forward proposals. That applies even to our Government. But, at the end of the day, it is the Government who decide, not the civil servants. The position is exactly the same here. I give way to the noble Lord, Lord Clinton-Davis.

Lord Clinton-Davis

My Lords, I am much obliged. I am sure that the noble Baroness would concede that, in considering all the matters to which she referred, the Commission did not seek to defend the status quo but, in fact, warmly welcomed greater accountability to the Parliament.

Baroness Elles

My Lords, I am delighted to hear that the noble Lord, Lord Clinton-Davis, thinks that the Commission was pleased that the new power has been given to the Parliament. We shall wait and see whether it will be pleased when the power is actually used.

Lord Harmar-Nicholls

My Lords, I have one point to make in response to the infatuation of my noble friend Baroness Elles with the European Parliament and its powers. She talks as though the Parliament in Europe is similar to our Parliament. Well, I do not agree with her. If such powers were given to our Parliament they would be used sensitively and with great care. However, that is not the makeup of the European Parliament; indeed, it is not likely to be so. It is too diffuse. My noble friend knows as well as I do that it is the heads of the various groupings that carve up all the decisions and agree to all the appointments.

The only reason I intervened is that many or my fears would disappear if the European Parliament was, or was likely to be, anything like our own Parliament. To make such a contribution as that of my noble friend could leave the impression that that is exactly how it will happen. In fact, my noble friend knows from her contact with it that the individual decisions from the Parliament come from the groupings where various arrangements are made to suit the matters being put forward. I am not against that, provided that we do not give the impression that it is something different from that which it is. The fact that the Parliament has been given such power satisfies my noble friend, but it gives me no satisfaction at all.

Baroness Elles

My Lords, I can only say that each parliament has its own characteristics. I am sure that the European Parliament will assert those new powers with due respect and conscience. If my noble friend does not like the present composition of the European Parliament, I invite him to rejoin the Parliament so that we have distinguished members with experience of parliamentary democracy who will contribute to a better ongoing performance of the European Parliament.

Lord Stoddart of Swindon

My Lords, is the noble Baroness aware that the last thing that some of us want is to see the European Parliament being given more powers? That is precisely what it wants and precisely what it has been after for a long period of time, in exactly the same way as our own Parliament wished to obtain further powers from the Crown. It eventually succeeded in that aim and so achieved power to be sovereign over the Crown.

It seems to me that the new powers could give the impression that the Parliament can not only dismiss what it terms to be the government and state what it would like to see as the government of Europe, but it will also now have a say in appointing that government. Therefore, every twist of the ratchet gives the Parliament more power. The more power it gets, the more power it will want. If one looks at the manifesto or declaration of the European People's Party, it is quite clear that the party sees the European Parliament as the sovereign Parliament of the European Union and that it sees national parliaments as being subordinate to it.

Therefore, I am not at all happy about the new power being given to the Parliament. Through all my experience, I know that once you have power you want more and more until, eventually, you acquire all of it. That is the great danger.

Lord Aldington

My Lords, the noble Lord's last statement frightened me very much: once you have power over this House you want more and more. I shudder to think what he will do to us during the course of the next three days of debate. I apologise to the noble Lord who introduced the amendment as I was a few minutes late in entering the Chamber. The debate is not about the European Parliament, it is about the powers of the Commission. With great respect to the noble Lord, Lord Stoddart, that is what we are talking about tonight.

The noble Lord, Lord Bruce, has for a long time held a suspicion about the Commission and the Commissioners. He has warned us of their overweening grasp for power and about their undemocratic appointment. I have been sitting in Committee with the noble Lord, Lord Bruce, when we have had such Commissioners and leading members of the Commission in front of us. He has never charged any of them with the offences that he has now put before the House. The noble Lord appears to want to intervene. I shall not allow myself to be interrupted at this point because I know perfectly well that that is true. The noble Lord has a fetish about the Commissioners, but he does not confront them when they present themselves before us with factual information about what they are doing.

Therefore, perhaps I may start by defending the Commissioners whom I have had the honour to interview and cross-examine. I do not think any noble Lords will wish to accuse their colleagues in the House, regardless of the side on which they sit, of an overweening greed for power: they have a duty to do and they try to do it.

In the course of the speech made by the noble Lord, Lord Bruce, we were told of a number of instances in the Maastricht Treaty where the Commissioners appear to have been given more power. I do not think that the noble Lord is in a position to answer—although he may be in such a position later—but has he looked at the powers that the Commission has under the Treaty of Rome? Has he looked at the extra powers that the Commission was given under the Single European Act in connection with economic co-operation? They are not dissimilar.

It is in the nature of the Community's institutional balance that the Commission initiates and the Council decides, with Parliament playing the part that it is given—an enhanced part, I am glad to say, in Maastricht. That is in the nature of the balance of powers within the Treaty of Rome. If the present amendment is another device to attack the Treaty of Rome, then at this stage of the evening I must warn your Lordships against it.

Too many of our debates have been about the Treaty of Rome or about the Single European Act, but not about Maastricht. Maastricht certainly gives the Commission the same sort of powers in connection with the slight changes that it has introduced. Having been given those powers, the Commission is now subject (as it was not subject before and is not subject now legally until we have ratified Maastricht) to the doctrine of subsidiarity. I oppose the noble Lord's amendment.

Lord Morris

My Lords, my noble friend Lady Elles suggested that the House should draw immense comfort from the new powers given to the European Parliament with regard to the appointment of the Commission and, indeed, of the president of the Commission. She made that absolutely clear in her remarks and quoted from Article 158. She said that, the President and other members of the Commission thus nominated [should] be subject … [to] approval by the European Parliament". However, that is not what Article 158 states. It reads: The President and the other members of the Commission thus nominated shall be subject as a body to a vote of approval by the European Parliament". That means that if one member of the Commission, perhaps even the president, has a serious objection, he has to take on the whole of the Commission, with the president, or do nothing. That is a tremendous limitation of power. Let us say for the sake of argument that the Parliament approves the nomination of the Commission, and the president of the Commission, by a vote. Whatever anyone says in Parliament can he totally disregarded by the governments. They can disregard what their own members may say within Parliament. The power of appointment resides with the governments of the member states, which they have to agree in common accord if the European Parliament votes that way.

Baroness Elles

My Lords, I am most grateful to my noble friend for giving way. Paragraph 2 of Article 158 states: The governments of the Member States shall nominate by common accord, after consulting the European Parliament, the person they intend to appoint as President of the Commission". The Parliament is consulted and it can therefore refuse to accept the nomination of the president as so proposed by the member states.

Lord Morris

My Lords, I take my noble friend's point; but the power to consult does not give, under this article, any power then to compel the governments to change their nomination. This matter needs to be looked at very carefully. One should not draw comfort from what my noble friend suggests.

8.45 p.m.

Lord Clinton-Davis

My Lords, I speak as one of those kindly and gentle people to whom my noble friend Lord Bruce of Donington referred earlier. I should say at once that as regards the Opposition, we would deny wholly that we have entered into any conspiracy against Back-Benchers to seek to truncate or eliminate debate in this House on this treaty. I suspect the Government would say likewise but that is a matter for the noble Baroness. My noble friend made a serious charge without a scintilla of evidence. It should not have been made.

As one of those kindly and gentle people that have been referred to, I must say that I do not recognise that the Commission as described by a number of noble Lords tonight is representative of the actual Commission at all. I have the benefit of having served on the Commission. Perhaps my noble friend may find it convenient, or inconvenient, to say that Ministers have the power in the last resort to make decisions. Of course they have that power. My noble friend says that Ministers are not up to that for a variety of reasons as they do not have the time to read their papers. I should point out that they do not always have time to read their papers in this country as junior Ministers are often sent in to bat at about 10 minutes' notice. I believe they do rather well when that happens.

The fact of the matter is that in my experience Ministers are rather well briefed when they sit around the Council table. I accept they have a bevy of civil servants around them except when the testing time arrives and the commissioner suggests to the president who is in office for the time being that it might be a good idea for a session to be convened without any civil servant backing for Ministers. One would have thought, listening to my noble friend, that somehow the whole thing would collapse and the commissioner would have his own way, or the president in office would have his own way. However, things do not work like that.

I have seen Ministers summoned to meet the commissioner and the president in office for the time being in what are called confessionals when they are tested vigorously about their opposition to a particular proposal. Invariably the Ministers fare extremely well without any civil servants accompanying them. By and large, Ministers know their briefs. I had the happy opportunity to discuss Community affairs and Commission affairs with the noble Baroness from the Government party. She was always sympathetically received in the European Parliament. I am not in the business of praising Members of this Government unduly, but I thought the noble Baroness struck a happy note in the European Parliament to the advantage of this Government, the Parliament and the Commission. She took the trouble to familiarise herself with her brief.

I cannot recognise the situation that my noble friend has described. It is ludicrous to suggest that there is collusion to subvert Ministers between the member states' civil servants and the civil servants of the Commission when they meet in COREPER or working groups. The civil servants representing a member state are there to perform their duty for the government whom they represent. There are sharp collisions. To the best of my recollection, no Commission proposal has gone through unscathed. I may be wrong on that; but I cannot recall a proposal that went through unscathed during the four years in which I served on the Commission.

As regards the undesirability of the Commission producing reports, I do not think any commissioner or any commission official would say he has a monopoly of wisdom. They realise that they do not have such a monopoly of wisdom as the Parliament constantly criticises those reports and Ministers constantly criticise the reports. They should do so as there is nothing inviolate or sacrosanct about the reports. The treaty imposes a duty on the Commission in many respects to offer an opinion on a wide variety of matters.

I should also say to my noble friend that as regards the question of accountability one can never remove the significance of the personal relationships that a commissioner has with those with whom he or she has to deal. That applies whether it is a question of government Ministers, the Members of the European Parliament with whom the commissioner has a particular relationship because it is their dossier the Parliament is considering, or whether it concerns the relationships between commissioners themselves. My noble friend seems to attach no significance to this whatsoever. I assure my noble friend that that is how it works in practice.

Tonight my noble friend dismissed the whole question of accountability through an ombudsman—he dismissed this more fervently in another speech he made—and through the power of the Parliament to investigate cases of maladministration. However, I know for a fact that the Commission has welcomed that accountability although it may regret that later. The Commission has always asked for greater accountability. It recognises the shortcomings that have emerged from the situation thus far in terms of a democratic deficit.

The noble Lord, Lord Harmar-Nicholls. said he would feel happier if the European Parliament more closely resembled a parliament with powers such as the British Parliament. My noble friend Lord Stoddart immediately rebuked him for saying such a terrible thing. I am not at all sure that in this Parliament—notwithstanding the noble efforts of the Select Committee of this House to scrutinise European Community legislation—we have anything to be proud of—for this Parliament fulfils a limited role in this regard. Certainly, the noble Lord, Lord Aldington, would be the first to recognise that the Select Committee on which he served, and other committees, have done a wonderful job. However, it is a limited job. They cannot cover the whole panoply of European Community legislation.

We ought to consider that aspect before we criticise the European Parliament. Perhaps we could also learn from the German Parliament where Members of the European Parliament sit alongside German Members of Parliament in order to scrutinise legislation and quiz members of the Commission and others.

The suggestion made by my noble friend Lord Stoddart that the European Parliament is anxious to consider the Commission as the government of Europe is fanciful. A speech or two to that effect may be made by an aberrant Member of the European Parliament but there is no cogent evidence to suggest that that is what Members of the European Parliament want. Nor should they.

I believe that the noble Baroness is right. There is the beginning of greater accountability on a formal basis. I welcome that, but I believe that there is still a great deal of ground to be covered in that regard.

Finally, it is also a strange notion to suggest that this all-powerful Commission thinks up every idea on its own and then embarks upon initiating legislation. Again I can speak from experience. I support the views of Commissioner Bruce Millan, expressed in his evidence to the Foreign Affairs Committee of another place. In paragraph 89 of that committee's report he explained that despite the Commission's ostensible sole right to initiate Community legislation, in fact most of the ideas have not come from the Commission at all … The Member States themselves have had a lot of the responsibility". When one attends a Council meeting one knows that. The Council asks the Commission to undertake this, that or the other. The European Parliament, in its own initiative reports, has played a notable role. For example, the European Year of the Environment stemmed from an own initiative report of the European Parliament, as did Road Safety Year and the present Year of the Aged.

It is an amalgamation of ideas, emerging from all the institutions, which tends to produce the legislation. It is not a monopoly which is exercised by the Commission. It has the formal right to propose legislation. It has responsibility in that regard. But there are also many other factors to be considered.

Baroness Chalker of Wallasey

My Lords, this has been an unusual debate. After the speech of the noble Lord, Lord Clinton-Davis, it hardly seems necessary—except for one or two matters that he mentioned—that I should rise to reply for the Government. Perhaps I may begin by thanking the noble Lord for his kind remarks.

I share the noble Lord's view that Ministers do read their papers. In the mind of the noble Lord, Lord Bruce of Donington, there is a certain mystique about what happens in a Minister's life in preparing for a Council meeting. The first thing I would say to the noble Lord, Lord Bruce, is that one does not and cannot possibly cope with Community legislation if one prepares on the day, which is the impression he gave. The second thing I would say to him is that there are many intricate details which may not form part of the overall case. But if Ministers, as most do, find themselves at some time in a restricted session at which there are only Ministers, the commissioner and a couple of presidency clerks at the table, and they have not done their homework, then woe betide them. They do not have available the devices which are sometimes deployed in another place or in government to get them out of trouble. They really are on their own. I have watched Ministers from other countries in great trouble. I am glad to say I have never known any of my colleagues experience that problem because they make sure that they are properly briefed. One may go through the final briefing on the aircraft. That is a good use of time. I do not believe in wasting time and nor do my colleagues. However, although that final briefing is valuable, it will certainly not be the first time one has read the documents.

I have to say to the noble Lord, Lord Bruce of Donington, yes, Ministers need time to cope, especially in European affairs. But they are certainly not baffled by their officials. They are very much helped by their officials. In this country we are particularly fortunate in our briefing. There are also permanent representatives in Brussels who make sure in advance of any meeting that one knows exactly what position might have been taken overnight by Ministers from other countries, who may have had more last-minute briefing than the noble Lord realises.

The working of the Commission is not as the noble Lord described it. It is a good deal more organised. It is certainly undertaken in much greater depth. If the Commission worked in the way that he described I would agree with him that the whole situation was crazy. It just so happens that it is not.

The noble Lord, Lord Bruce, went on to speak of a situation which is very far from reality. I know how important it has been for Members of the European Parliament to share in the overall construction of the Community that we seek to build. I believe that my noble friend Lady Elles was absolutely right in what she said about the European Parliament.

It is normal Community practice to review periodically the role and functions of each institution, not just the Commission. Yet the noble Lord, Lord Bruce of Donington, concentrated exclusively on the Commission in what he said tonight. That review also applies to the other institutions.

It is clear that from time to time all governments will find aspects of the working of the Commission which they do not like. However, when one has built up the relationships of which the noble Lord, Lord Clinton-Davis, spoke tonight, one learns why those things are happening. It may be the result of some fault in the preparatory work in Brussels or in Council meetings; it may be the fault of the Civil Service here at home which has not understood the proposition which is being put forward. It is sometimes hard for Members of Parliament in this country to understand the complications and the need for communication and co-operation between all parties—the Members of the European Parliament, the civil servants working at home and in Brussels and, above all, the Ministers—if the Commission is ever to succeed with any of the proposals it puts forward.

It is not merely the proposals which the Commission puts forward which eventually come into our forward planning, as the noble Lord, Lord Clinton-Davis, said. It is also ideas which come from national parliaments. Indeed, we spoke of toy safety earlier. I remember working very hard to try to ensure that toys were safe for children's sake. It seemed to me to be a sensible consumer regulation. However, it took some time to persuade other governments and the Commission. We certainly needed the help and support of Members of the European Parliament to achieve it. Eventually it was the Commission which rightly came up with the proposal. That, if I remember rightly, was amended as a result of the discussion process at the time. I do not believe that that is a bad thing in reaching sensible, workable proposals.

The amendment which the noble Lord, Lord Bruce, moved, refers to the periodic review of the Commission. The noble Lord also said a great deal about the powers of the Commission. Perhaps I may say a little about the powers, as outlined in Article 155 of the Treaty of Rome. The Commission's role is to ensure that the Community's treaties are applied as well as to bring forward those proposals for the Council to consider. That is unaffected by Maastricht. The Commission is not a decision-making body. The Council of Ministers takes decisions on the basis of the Commission's proposals. The Commission may take decisions itself, but only where powers have been specifically delegated to it by the Council under carefully drawn conditions.

Let us take, for example, the provisions for the negotiation and conclusion of external agreements with third countries, as outlined in Article 228 of the Maastricht Treaty. The Commission has the power to conduct those negotiations on behalf of the Community. It makes sense for the Twelve to speak as one in such cases. But it only goes into such negotiations when authorised to do so by the Council of Ministers and on the terms agreed by the Council of Ministers. Similarly, the Commission will conduct negotiations in consultation with special committees appointed by the Council to assist it. But it has to be within the framework of guidance and instructions given by the Council.

I disagreed strongly with the noble Lord, Lord Bruce, in his sowing of a little doubt this evening. In making so much of the role of the Commission in Articles 103 and 104, he repeatedly laid stress only on what the Commission would do. As my noble friend Lady Elles said, in other words, he skated over the Council's role. Article 103.3 states that, The Council shall … monitor". Article 103.4 states that, The Council may … make". Article 103a.1 states that, The Council may … decide". The point that exists the whole way through the treaty is that although the Commission may propose, only the Council will decide.

Such powers as the Commission enjoys are also subject to improved scrutiny under the terms of the Maastricht Treaty. As my noble friend Lady Elles said, under the treaty, the role of the European Parliament in monitoring the Commission is substantially reinforced. Not only does the European Parliament have the powers that she described, it also has the right to establish committees of inquiry, to receive petitions from individuals and to invite the ombudsman to investigate maladministration.

The noble Lord, Lord Bruce of Donington, described the Commission as appointed officials, and I believe that he said "leakers" at one point. I am not sure whether that is parliamentary; it is certainly not complimentary. The Commission goes to very considerable lengths to maintain a good working relationship, otherwise it would never make progress on any of the areas of work which we ask it to carry through.

I wish to comment briefly on one further point on the amendment, that is, the main change relating to the appointment of the Commission which is outlined in Article 158 of the treaty to which my noble friend Lady Elles referred. The article itself provides for an increase from 1995 in the terms of office of the president of the Commission from two years to five years, and of ordinary commissioners from four years to five years. That will make their terms of office coterminous with the European Parliament. We believe that to be sensible because Article 158 also subjects the Commission, as a body, to a vote of approval in the European Parliament. That represents a welcome step forward in the running of the Commission. But the important factor is that the Commission will now be subject to a greater democratic scrutiny, and member states will retain their right to nominate their own commissioners and to appoint both the president and the commissioner. Therefore I believe that it is another step forward.

I find the Maastricht Treaty an improvement on the previous Community treaties. It clarifies and codifies what the Community should do. It makes clearer than ever what it may not do. In areas such as education., health and culture, harmonising measures are explicitly excluded. We know that the Community may not involve itself, for example, in national health care systems. There are other examples too. The point that we make is that any action in those areas is restrained by the specific treaty bases in Maastricht. I believe that that is indeed a protection.

A number of other points were made by my noble friends and by the noble Lord, Lord Stoddart of Swindon. The noble Lord described his tear and anxiety about the European Parliament wanting new powers. I understand a little as to why he is anxious. But we cannot have greater scrutiny regarding all that is done in the European Community unless the European Parliament also plays its part alongside that of national parliaments. I say this to the noble Lord, Lord Stoddart of Swindon. I, for one, will be very much happier if other member states' parliaments scrutinised half as much as the British Parliament in both its Houses. One of the weaknesses in many countries is the fact that their own parliaments scrutinise insufficiently. We should never allow ourselves to reach the stage where we rely on the European Parliament to do all the scrutiny. That would be wrong. It should be a dual function between the national parliaments and the European Parliament. While we cannot put right what may be wrong in other parliaments, I can tell your Lordships' House that there has been considerable praise for the way in which this Parliament, and indeed the Danish Parliament, have scrutinised by comparison with other parliaments within the European Community.

The amendment is interesting, but it is not necessary for the good working of the Bill and of the treaty. I believe that it would simply slow down and harm our progress. To require the Government to formulate, within 12 months of the Act coming into force, proposals for reviewing the new areas of competence of the Commission and the term of office of commissioners, would mean that after those 12 months we might not have the chance to act as we should. I, for one, do not intend that we shall be forced to react to others' proposals when we have good proposals to put forward. Therefore I urge your Lordships to reject the amendment.

Lord Bruce of Donington

My Lords, I am most grateful to the noble Baroness for the response that she gave to the amendment and the remarks that I ventured to make on it. If she will permit me to say so, I always admire the way in which the noble Baroness meets the questions head on and answers them honestly. I am second to none in my admiration for the way in which she carries out her existing duties. Being quite an innocent person herself, in the sense that she would never conceive of anyone doing anybody down about anything, her defence of the Commission will arouse immediate approbation in Brussels and thereafter in the Berlaymont. She will be canonised from now on.

Lord Clinton-Davis

My Lords, the Berlaymont is closed.

Lord Bruce of Donington

My Lords, I believe that at considerable expense a new headquarters has been erected which, fortunately, is free from asbestos, otherwise there might have been much combustible material flying about!

I should like to offer the House an immediate apology if I used the term "conspiracy" in regard to the attitude of the two Front Benches towards the Back Benches. The term "conspiracy" was not used within the context in which my noble friend Lord Clinton-Davis used it in the legal sense, it ought to have been put in quotation marks and expressed in terms of a "tacit understanding". I sincerely hope that my revision of the term to "tacit understanding" will meet the point.

I was fascinated with the explanations given by my noble friend Lord Clinton-Davis. We must have been sitting in two different places at two different times, because my recollections of the Commission—which are to some extent personal—do not square entirely with his. The presumption of lily-white innocence in the intentions of the Commission which he put forward no longer correspond to reality, although they obviously obtained during his tenure of office. One need only examine what the Commission has said—and I have sufficient material to paper the walls of this Chamber from top to bottom with some of its more ridiculous utterances—to realise that these days the members are not quite of the same calibre as they were during the sojourn of my noble friend in the headquarters of the Commission.

I do not feel called upon to answer the observations that have fallen from the lips of the noble Lord, Lord Aldington. He ventured to comment on my attitude in the Select Committee but if he wants an inquest on those proceedings under his chairmanship, I shall be happy to provide it. Had the opportunity been afforded to me, I should have been only too delighted on some occasions to question commissioners. However, the noble Lord did not understate the time he himself took as chairman to question various witnesses, to the point where some of us felt that perhaps other people could have asked questions as well as our distinguished chairman, for whom we have the utmost regard.

I shall not deal with the matter which the noble Baroness, Lady Elles, raised about the European Parliament as it will form the subject of later observations from me when it comes to budgetary control, with which the noble Baroness will undoubtedly be familiar. Therefore, I shall reserve my comments until then.

In the meantime, I wish to thank your Lordships for listening so patiently to the observations I have thought it proper to make. I do not claim any monopoly of wisdom, but I claim that what I ventured to put forward represents my true and sincere belief as to the position. I am not trying to fool anyone, but I hope that when in due course your Lordships come to a decision it may be helpful to consider whether there is much in what I have said. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 9 not moved.]

9.15 p.m.

Lord Harmar-Nicholls moved Amendment No. 10: After Clause 1, insert the following new clause:

Subsidiarity

(". Within six months from the coming into force of this Act, Her Majesty's Government shall lay before Parliament a Command Paper which—

1. (a) lists those areas
   1. (i) which fall within the exclusive competence of the Community, and
   2. (ii) which do not fall within the exclusive competence of the Community; and
2. (b) lists those cases which have come to the notice of Her Majesty's Government which involve activities which are carried out wholly within the territory of the United Kingdom but which whose regulation lies in areas falling within the exclusive competence of the Community.").

The noble Lord said: My Lords, this amendment is intended to be constructive and helpful to the Government not only in the process of getting the Bill through but in its operation after it has been enacted. That is the general intention. With that in mind, my inclination at the moment is not to think of putting it to a vote. Its purpose is to see whether the Government have different ideas in terms of going into more detail about subsidiarity than they have so far. It is very important that they should.

I believe that this amendment on subsidiarity is tied very closely to the amendment which we recognise as the main one that is likely to be debated at Report stage. The subsidiarity point is very close indeed to the referendum issue, which I suppose will be the main point for debate. I believe that noble Lords in this House and people in the country prefer for the most part to adhere to the conventional parliamentary way of dealing with issues; that is, that Members of Parliament, who are supposed to have opportunities for going into greater detail as to what various pieces of legislation mean, argue and put their different views and come to a conclusion which becomes the legislation that is accepted. By and large, I believe that people outside, as well as most people inside Parliament, want that to continue as the main way of conducting our parliamentary business. If we want it to continue, I think that we must not have it infringed.

I believe that, for the most part, people outside Parliament would say that it is better that the parliamentarians themselves should deal with such questions as the interpretation and scope of the Bill; how it refers to GATT; and the Commission's powers and the terms of office. People outside would say, "Those are subjects about which we know nothing. They require a great deal of detailed knowledge which we have had no opportunity to research. We should like to leave that to the Members of Parliament, whose job it is to acquaint themselves with the detail." That applies to almost all the amendments that we are likely to deal with at this Report stage, except for the one on subsidiarity. The subsidiarity point is one in which people outside, if they are not already terribly interested in it, will become very interested in the future. When one talks outside this House one recognises that the general reaction of people to the Maastricht Treaty is: how will it affect my way of living; how will it affect things with which I am concerned; what does it mean?

It is vital that, so far as we can, we should spell out what subsidiarity really means and identify the points that are likely to be covered by the protection of subsidiarity as regards the independence of people in this country. If, as this amendment asks, we could spell out or indicate in a much better way than we have done so far what subsidiarity is likely to protect and reserve for local decision, I do not believe that there would be much demand for a referendum. I believe that people would recognise, as with most of the other problems, that it is better for the parliamentarians to deal with it with their special knowledge and their special powers. They do feel, whoever "they" are—and I agree—that subsidiarity has been dragged in as a sort of excuse to get over a rather tricky part of the treaty of which nobody, including the Government, is particularly proud. Subsidiarity is the answer to many of the fears expressed in newspaper reports and by many other members of the Community that sovereignty and the power that goes with it will be lost. There are instances where the Commission has tried to interfere with, say, where we should cut a road surrounding London and other matters of that sort—matters which are nothing to do with anybody except this country and the people in this country. That is the fear. If we could know, not exactly, because that would be asking too much, but in greater detail, what subsidiarity will cover by way of preserving our independence here at home, I believe that that would remove many of the fears that people have as to the overriding effect that the Maastricht agreement will have, if it is left as it is now.

It is not only during the period in which the Bill is put on to the statute book that we need to have reassurance. Things will go wrong afterwards. There will be many problems. The treaty will not develop smoothly and be without any quibble or concern. We know that all kinds of things will happen. I have given one example; namely, trying to alter the road surrounding London. But if, before Parliament and the people have given their acquiescence to the Bill, they have been told exactly what the treaty is likely to cover, there is less chance of having to face problems after the Bill has become an Act and is effective.

I do not want to push this issue to a vote, even though colleagues in this House may believe that it is worthy of coming to a decision tonight. I should like to give the Government a chance between now, Third Reading and the passage of the Bill to take on board this particular point.

In responding during Committee stage to an appeal similar to the one that I now make, the noble and learned Lord the Lord Chancellor, said that such a list would bore the reader and it would be impractical to draw up a list. I do not think that it would be boring. I believe that it is a vital ingredient if we want Maastricht and the spirit of Maastricht to work as the Government have described. On another occasion the noble and learned Lord said: if someone wishes to attempt a list, I should be happy to comment on it".—[Official Report, 28/6/93; col. 653.] Why cannot the Government draw up a list and allow us to be happy to comment on that list? They are in a much better position to be able to produce a list that has some strength and some significance. I believe that it would be in the Government's interest to do so. I believe that many of my noble friends may have different feelings about the vital vote on the referendum which will take place in a couple of days' time if the Government said—particularly if it came through the mouth of the noble and learned Lord the Lord Chancellor—that they would look at the matter and try to produce in greater detail the general idea of what subsidiarity meant. At the end of the day, my amendment does not call for anything to be done overnight. The amendment says: Within six months from the coming into force of this Act. Her Majesty's Government shall lay before Parliament a Command Paper which … lists those areas … which fall within the exclusive competence of the Community". That is the basis of the argument. If there is an undertaking or promise—it need not be an undertaking or need to be as deeply interpreted as an undertaking—we shall look at it and attempt to produce a list so that we can see what it covers. At the moment it seems reasonably clear to me that neither the Government nor anyone else have produced a list to cover the meaning of subsidiarity because nobody knows what it means. All the members of the Community have different interpretations of what is meant by "subsidiarity".

When the Maastricht Treaty was agreed and subsidiarity was first announced, we gave the Prime Minister many plaudits for the work that he had done. My first comment, which is on the record, was a question: what does subsidiarity mean? I said that it would satisfy me if it meant that each country makes a decision as to what it thinks ought to be dealt with at home, and that decision cannot be interfered with by anybody else. If we could say, "We can decide whether we ought to build a road or do lots of other things that will come within the range of the Maastricht Treaty", that would satisfy me. But we know that that is not possible because it is known already that almost every separate member of the Community has different ideas.

We also know that the general idea of the Commission is that it does not want to be tied in that way. We also had it clearly—I do not think that the noble and learned Lord has ever shirked this point—that the decision on whether subsidiarity will work and whether decisions shall be made on the home ground will at the end of the day be made by the European Court. If people think differently from ourselves on, for example, the fishing quota, or on what will happen with regard to internal planning, or on what kind of directives come forward telling our restaurants how to run their shows, and if those decisions are to be made by other people—although the other people may well be the European Court— those are the issues which people who are pushing for the referendum will want to be certain are left on our home ground.

The purpose of the amendment is to do no more than the very easy-to-read words say. There is nothing difficult about them. No legal interpretation is required. The amendment asks: what does subsidiarity mean? We have been told that it means that powers will be left to us to settle things ourselves and that we shall not be interfered with even by the European Court. We say, right, how far does that go? What does it cover?

I conclude my brief comments on this constructive amendment by telling my noble and learned friend who is to reply that some of us are entitled to be suspicious. I repeat what I have said before. I do so not from any point of view of wanting to make a personal statement but because it adds to the point that it is not an overnight feeling. It is a fact that I resigned as a Minister in the Macmillan government on the issue of the Treaty of Rome because I did not think that it was satisfactory. I thought that it would infringe on the sovereignty and powers of this country to look after the interests of the people in this country. Once we had signed the treaty I felt, despite that kind of plea, that it was everyone's duty to try to make it work. I felt that the right thing to do was to know more about it if I could. So I got myself elected to the European Parliament to see if there one could find the real meaning of the treaties that we had signed which I instinctively felt were not in the best interests of this country.

What I learnt there—and the reason I intervened on the question of what the parliamentary powers should be—confirmed some of my doubts. We were told, when we were arguing 22 years ago about certain dangers such as we are doing now, that certain things could not happen and that we had the veto; that we could stop it and that we would if these things happened. In the 22 years that have elapsed, during the period when I was in the European Parliament and certainly in the Parliament here, we have seen the power of the veto whittled away to an extent that makes it only a skeleton of what we were told it would be. If that happened to the veto, which got us on the way to the European treaty, will the same thing happen to subsidiarity? We were told when we questioned it that subsidiarity would put that right. Then we asked: what does subsidiarity mean? No one knows. Different countries have different interpretations of what they think it means.

All I am asking in this amendment is for the Government to say, "Yes, we will look to see if it is possible to sketch out in some detail what subsidiarity covers; what kind of things will protect our freedoms and what kind of things will be outside that competence". If we can have that it will help the Government to get their Bill and it will help the Government and the Community afterwards to operate it if it becomes part of the powers of the European Community. I beg to move.

9.30 p.m.

Lord Monson

My Lords, at Second Reading I drew your Lordships' attention to the fact that at the beginning of June the Minister's right honourable friend the Foreign Secretary had written: Subsidiarity must be the guiding principle of Community legislation". How splendid if that were actually to come about, as opposed to being no more than an over-optimistic aspiration, as the failure to achieve any real progress on subsidiarity at the Edinburgh summit seemed to indicate. Mr. Hurd went on to write: The body of existing legislation should be regularly culled". Extremely welcome though such an outcome would be, it seems even more over-optimistic in that such an aspiration is apparently stymied by the Berlin Wall of the acquis communautaire which Article B of Title I of the treaty stipulates must be maintained in full. I emphasise the qualification "in full".

Quite apart from the problem over the wording of the treaty which I have just mentioned, the other difficulty is that one is up against human nature. People who have been given too much power over others get to enjoy wielding that power and become most reluctant to give it up, especially when they have managed to convince themselves that they are exercising that power wisely and altruistically. To paraphrase a well-known saying current in Britain in the late 1940s, in Brussels nowadays the gentlemen in Berlaymont know best. A truly confederal system might be able to check that tendency, but unfortunately the Community is drifting towards federalism even if the actual "F" word has been censored out of the treaty.

We know from the experience of Australia and the United States of America how power becomes gradually more and more concentrated at the centre under any federal system, even in countries with a common law tradition and with a broad Anglo-Saxon bias in favour of freedom which is certainly not the case on the continent of Europe.

Let it not be thought that only the British worry about power being centralised and nation states being deprived of the right of independent action. Less than a year ago M. Jean-Louis Giral, who is president of La Fedération Nationale du Patronat Francais (the French employers' federation) in opposing ratification of the Maastricht Treaty by France, wrote that despite the apparent devolution of powers conferred by the principle of subsidiarity, from his own very considerable experience in negotiating with Community institutions, Brussels simply could not resist interfering in everything and trying to regulate everything and that accordingly there was a danger that subsidiarity in practice would amount to very little.

It is vital therefore, as the noble Lord, Lord Harmar-Nicholls, has indicated, to help the Government in their proclaimed objectives by putting some teeth into the concept of subsidiarity. The amendment is an essential step in that direction because it helps to clarify various ambiguities. The ultimate aim must be strictly to limit the Community's competence to matters which have cross-border implications, leaving purely national matters to nation states. The noble Lord, Lord Harmar-Nicholls, gave the example of road building and, indeed, we have had much trouble over the M.3 extension and Oxleas Wood. The Belgians, Portuguese, Greeks and Germans have no more business interfering in the building of our roads than we have in the building of theirs.

Perhaps I may take another example. For years, the British people have been conned into believing that "Europe" has given them pure water. The EC has given them nothing at all. What it has done effectively is to force them to pay through the nose for their water by way of much higher charges. The Sunday papers yesterday—the broadsheets, not the tabloids—reported that water charges would at least double, and quite probably treble, within the next seven years. If the British electorate really wanted to wash their cars and to flush their lavatories with distilled water they would only have to vote into power a government who promised to raise taxes and water charges to the extent necessary to make that possible. The fact that they have not done so suggests that they would rather have slightly less salubrious water in return for saving vast sums of money. However, the paternalists and busybodies of the EC decided otherwise—backed up, it is only fair to say, by paternalists and busybodies in certain national parliaments.

Lord Marlesford

My Lords, surely one cannot be totally nationalistic in the matter of the cleanliness of water. The North Sea, for example, is fed by many rivers from the Continent of Europe and greatly affects us. Surely, therefore, it is not sensible to take a nationalistic approach and to argue subsidiarity on that particular matter.

Lord Monson

My Lords, I am afraid that I cannot agree with the noble Lord. We are talking about drinking water, not about the pollution of the seas, which is another matter. I agree that anything that is discharged into the sea and affects other countries is a proper matter for cross-Community action, but drinking water is a purely internal matter.

The EC's action was popular so long as the British people believed that they were getting something for nothing. It will not be popular much longer now that the bills are thudding onto their doormats. I contend that matters such as this, which have no cross-border effects—I emphasise that once again to the noble Lord, Lord Marlesford—should be returned to the competence of national parliaments. If I have understood the press reports correctly, even M. Jacques Delors agrees. Being a fair-minded man, I am pleased to pay tribute to M. Delors where tribute is due. I hope that the Government will agree that the amendment usefully paves the way for power to be devolved back to where it belongs—the British Houses of Parliament.

Lord Bonham-Carter

My Lords, I listened to the—

Lord Simon of Glaisdale

My Lords—

Noble Lords

Order! Liberal!

Lord Simon of Glaisdale

My Lords, I am sorry.

Lord Bonham-Carter

My Lords, I accept the noble Lord's apology and look forward to hearing what he has to say.

I listened to the words of the noble Lord, Lord Harmar-Nicholls, with the greatest interest. I respect his resignation on the grounds that the Treaty of Rome would lead to a diminution or a de facto pooling of our sovereignty. That is something with which I have always agreed and, in advocating our signature, I never pretended that it would do anything else. However, he said something else with which I also agreed but, I suspect, for rather different reasons than those which he offered. He said that what he was asking the Government to do was to spell out—I think that I am quoting him correctly—what subsidiarity really means. He went on to say that all members of the Community have a different interpretation of "subsidiarity". Those are two extremely interesting statements that have implications which, it seems to me, the noble Lord did not fully recognise.

In point of fact, he is asking for a written constitution. The only way in which one can spell out exactly what subsidiarity means is by producing a written document which defines the powers that are held centrally and those that are held by the different component parts of the Community. That is a perfectly reasonable and sensible thing to do and it produces—or should produce—the clarity which the noble Lord advocated. It is what was clone in Philadelphia—I believe I am right in saying—in 1787. It is an extremely complicated process, and cannot be done in six months. Secondly, it cannot be done unilaterally by Her Majesty's Government. To avoid the second danger of all members interpreting it differently, to which the noble Lord referred, it would presumably have to be agreed by all member states. We should have to have a kind of constitutional convention. What we should end up with is not merely a written constitution, but a federal constitution.

I always thought that noble Lords who opposed Maastricht, opposed it because, in the words of the noble Lord, Lord Monson, it was drifting towards federalism. Well, the noble Lord, Lord Harmar-Nicholls, is not drifting towards federalism, he is driving straight at it full speed ahead. I happen to think that that is not a wholly bad thing, but I cannot believe that it is the position of the noble Lord, Lord Tebbit, the noble Baroness, Lady Thatcher, or the noble Lord, Lord Pearson of Rannoch. They tell us that the great danger is that we shall have a federal constitution. Here we have an amendment, supported by the noble Lord, Lord Monson, in which a straight federal constitution is advocated. The result of that will be that when there is some dispute as to whether one of the nations is interpreting the constitution correctly, the only way in which the problem will be solved will be by having a supreme court. Therefore we should be giving more power to the European Court of Justice to interpret the constitution.

I point that out only because it is interesting that that view, which is not totally alien to that which I share, should come from the noble Lord, Lord Harmar-Nicholls.

Lord Harmar-Nicholls

My Lords, there is one point upon which I should like to hear the noble Lord's reaction. If it is not possible—that is what he is suggesting—for the I2 members of the Community to reach agreement on such an intimate and important matter, is there not a message in that as to whether the Maastricht Treaty itself is something of which we should be in favour?

Lord Bonham-Carter

My Lords, I hope that we should obtain an agreement. I suspect that we should, because there would be a will to do so. All I am saying is that the result would be a federal constitution.

Lord Simon of Glaisdale

My Lords, I did not intend to speak this evening, but I am bound to say that it is tiresome that we have these arguments over and over again. In Committee, a vast miasma of suspicion and obfuscation was erected around the word "subsidiarity". The term was explained with absolute clarity by my noble and learned friend the Lord Chancellor. My noble and learned friend Lord Slynn of Hadley explained how it would work in the Community. Here again, we have this evening a declaration that no one knows what subsidiarity means and no one knows how it will work.

In fact, the only real excuse for the amendment is that it is one of the few which bears any relation to the Bill, because the term "subsidiarity" is, for the first time, introduced into a European treaty, and it is highly important that it should be.

Subsidiarity is perfectly explicable. It means that a decision should not be made by any decision-maker more remote from the person affected by the decision which could be made reasonably by some institution or decision-maker closer to the person affected. In domestic terms, it means that the parish council should not decide any matter that can properly be decided by the parishioner, and so on up the hierarchy to Whitehall. Whitehall should not decide any matter which could reasonably be decided by a county council, a district council, a parish council or the parishioner himself. That is easily transferable to the European institutions. Nothing should be decided by Brussels which cannot reasonably he decided by Whitehall or some subordinate decision-maker.

The noble Lord, Lord Harmar-Nicholls, and I have been colleagues for many years and I should like to flatter myself with friendship. However it is absurd to say that the situation has not been explained. Theologians know a condition called "invincible ignorance" whereby whatever the explanation the recipient cannot take it in. It excuses the recipient from everlasting damnation. I am glad to think that the noble Lord, Lord Harmar-Nicholls, is so excused.

This is an important innovation into the treaty for the reason that I ventured to explain. I hope that we need no longer have any obfuscation about what subsidiarity means or its value.

9.45 p.m.

Lord Pearson of Rannoch

My Lords, perhaps I may ask the noble and learned Lord, Lord Simon of Glaisdale: who decides whether a decision is taken at the level of the local council, the district council or—

Noble Lords

Order!

Lord Pearson of Rannoch

My Lords, I believe that I am in order. I must remind the noble and learned Lord of the wording in Article 3b which states: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity". There is nothing in the guidance as to who takes that decision.

The only guidance that we have is contained in the Edinburgh declaration, which I imagine all members of the Community agreed. One must therefore ask whether the famous Article 3b will in any way change the acquis communautaire. It is worth quoting that declaration, at the end of which I shall ask my noble and learned friend the Lord Chancellor whether he agrees that that is the declaration and how Her Majesty's Government will try to reverse it. The declaration states: The principle of subsidiarity does not relate to and cannot call into question the powers conferred on the European Community by the Treaty as interpreted by the Court". The words "as interpreted by the Court" are important. During our proceedings many noble Lords will have become convinced that the Court is merely the engine of the treaty and is not a court of justice as we understand it. The declaration continues: It provides a guide as to how those powers are to be exercised at Community level, including in the application of Article 235. The application of the principle shall respect the general provisions of the Maastricht Treaty, including the 'maintaining in full of the acquis communautaire', and it shall not affect the primacy of Community law nor shall it call into question the principle set out in Article F(3) of the Treaty on European Union, according to which the Union shall provide itself with the means necessary to attain its objectives and carry through its policies". Those who support this Article 3B and pretend that it is some shield for our national sovereignty have to say clearly either who will be taking the decisions in question or they have to make a list as to what is protected by the shield of subsidiarity and what is not so protected.

Lord Clinton-Davis

My Lords, I shall be brief because the question of subsidiarity was canvassed at length in our previous debate and, with the greatest respect, nothing new has been said this evening.

I believe that there is perhaps a need on the part of the Government to listen to the advice given by the Select Committee in another place as regards its suggestion that it would be helpful if the Government were to report regularly—perhaps by way of six-monthly reports—on developments in the European Community as to how the principle has been applied. But I do not believe that apart from that, and perhaps consideration by Select Committees and scrutiny committees in both Houses as regards the application of the issue in practice, it would be helpful to list the matters of subsidiarity in the way proposed in the amendment.

As the noble and learned Lord, Lord Simon of Glaisdale, said so effectively, the noble and learned Lord, Lord Slynn, and the noble and learned Lord the Lord Chancellor dealt extensively with the issue as to how the question of what is and what is not justiciable may be applied. There is really nothing to add in that regard.

The noble Lord, Lord Monson, referred to the question of building roads. I recommend him to look at paragraph 2 of Article 130 where he will see specific exclusions from the application of qualified majority voting as regards environmental proposals. The drinking water directive goes back to 1980 when it was accepted unanimously by the governments of the Community, including the Conservative Government. There is nothing more to be said about that.

I believe that this is a thoroughly impracticable proposition. I hope that if the opinion of the House is tested on the matter, it will reject the amendment although the noble Lord, Lord Harmar-Nicholls, said that he does not intend to push the matter to a vote this evening. I believe that he is very wise because the amendment does not add up.

I hope that the noble and learned Lord the Lord Chancellor may recommend to his colleagues that the application of the suggestion made by the Select Committee in another place would be helpful to Parliament as a whole.

The Lord Chancellor (Lord Mackay of Clashfern)

My Lords, perhaps I may deal first with that last point. Obviously, the arrangements to be made for the scrutiny of activities within the Community require to be reviewed from time to time. I have no doubt that the various suggestions made in that connection will be taken into account as we progress.

I wish to say a few words about the amendment and some of the comments that have been made about it. I believe that I have answered already all the questions which have been put this evening but that may not necessarily preclude me from doing so again.

As regards the acquis communautaire—that is, the standing law of the Community—what has been said is that that law stands. Obviously, it would be a very difficult situation to think of that law as affected by the principle without further enactment. However, it does not mean that standing law may not be reviewed in the light of' the application of the principle and then modified by subsequent enactment. I am sure that my noble friend Lord Pearson of Rannoch understands that.

Reference was made to pretence. I repudiate any suggestion of any kind of pretence. I have sought to explain as clearly as I can the words which are used in Article 3b. There is no pretence about it whatever. In order to avoid any pretence, I have declined to prophesy exactly what would happen in any particular case. I have not done so because the words of Article 3b—as is so often true in the law—while being very clear and precise, have to be applied to particular circumstances. The judgment of how they should be applied to particular circumstance is something that will ultimately be the responsibility of the judicial authority that will be charged with the ultimate decision.

My noble friend Lord Pearson of Rannoch asked who would decide the matter. I have sought to answer that question. His answer is that the European Court of Justice, notwithstanding its name, is not a court of justice. I do not know what my noble friend's attitude is to the Treaty of Rome. However, the Treaty of Rome set up the Court of Justice. That treaty, and those who acceded to it, considered that if you were to have a Community legal order, then it was necessary to have a court which decided questions of Community law in a way that applied throughout the Community. Accordingly, it was necessary to have the European Court of Justice, with members from each of the constituent member states, which would have such responsibility.

I altogether repudiate the notion that it is not a court of justice. It is possible that it comes to decisions from time to time with which my noble friend Lord Pearson of Rannoch does not agree. Indeed, that may occasionally happen even for me. However, that does not mean that it is not a court of justice. I should point out that about 50 per cent. of those who go to the courts come away a little dissatisfied with the answer received. I suppose that even one of the mothers who appeared before King Solomon was a bit dissatisfied with the answer. However, that does not mean that it was not a just answer and the best answer that a just judge could give in the circumstances.

The ultimate question of the application of the doctrine of subsidiarity in Community matters, in so far as it is a matter of Community law and it is made so if Maastricht is ratified by the inclusion of Article 3b in the Treaty of Rome, as amended, is a matter for the European Court of Justice to determine.

I am grateful to my noble friend Lord Harmar-Nicholls for seeking to help the Government to find the right answer in the referendum vote. I am sure that he is doing everything that he possibly can to help us obtain that answer. Therefore, I wish to respond to him as fully as I possibly can. I have sought to do so by explaining the criteria under which one decides whether or not under the existing treaties (and, as amended by Maastricht, if it is approved) the areas of exclusive competence are to be determined.

In areas of exclusive competence, there is no room for the question as to whether it is a member state or the Community that should legislate. The agreement between the member states has determined that question by stating that it is the Community that should legislate. But even in that area, Article 3b provides that the Community legislature should not go beyond what is necessary to achieve the objectives of the treaty. Those are clear words. I believe that I know what they mean. They can be applied to test any Community instrument.

In so far as the option is left between the Community legislating and the member states legislating, the second paragraph of Article 3b makes it plain that the Community is to legislate, 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". All those are quite simple words to be applied to test the question in any particular case.

As regards a list of areas of exclusive competence, I have explained—I hope clearly—the reasons why it is not really possible to frame a list in the sense which my noble friend mentioned. I have sought to indicate the general areas in which this occurs. They are the common agricultural policy, the common commercial policy, the common fisheries policy as regards conservation, and the common external tariff. Those are the general areas but, as I have explained, one has to delimit within them in considerable detail before one can say one is discussing an area of exclusive competence.

In practice, a proposal is made and tested against the power under which it is proposed. One then examines that power. The idea of trying to do that in the abstract, which is what my noble friend is seeking to do, is quite impractical. If he tried to undertake that by reference to particular cases, he might understand the position better.

The noble Lord, Lord Bonham-Carter, said that my noble friend was making rapidly towards a federal constitution. I am sure that is about the last thing my noble friend Lord Harmar-Nicholls would want to do. Even in a federal constitution there are questions on how the division of powers between the constituent bodies applies. Noble Lords who have any familiarity with the development of the law of the United States or of the Commonwealth of Australia will know of a case or two in which that question has been raised. It is quite impossible to exclude litigation altogether in these areas because of the imprecise nature of language as an instrument and because of the difficulty of forecasting, at the time an instrument is made, all the possible situations to which it shall apply. I believe that the clarity of Article 3b matches the clarity of any such division of powers in the kind of constitutions to which I have referred.

As regards existing law, I believe that the Community will review it to see to what extent it should be modified in accordance with the terms of Article 3b. Article 3b itself will not have that effect, as I have sought to explain, but I believe the Community will embark on such a review. As the Edinburgh Summit showed, the Community has already done that. For what it is worth, I confirm that my noble friend Lord Pearson of Rannoch has correctly quoted from the Edinburgh communiqué but in my view that does not advance his cause one iota.

I hope your Lordships will not wish to give effect to this amendment. I understood that my noble friend desired simply to help me by probing me to the ultimate and that he did not really intend to press the amendment. I commend that view to him.

10 p.m.

Lord Harmar-Nicholls

My Lords, the noble and learned Lord said that no new points had been put forward and that he had answered the points that had been raised. However, the noble and learned Lord has not answered those points. What he has done, on three occasions now, is to give an answer but he has not answered the points. He has given an answer to assuage some of the doubts that some people have on this important problem. He may have satisfied the noble and learned Lord, Lord Simon of Glaisdale, but he has not satisfied a lot of others.

I accept that what this amendment asks for would not be easy to provide. It may well be that the noble and learned Lord is right in saying that six months would not be enough time for the matter in question. If the Government could have said that they would attempt to recognise where the powers are and how far they extend, that would have signified some progress. However, the noble and learned Lord has given an answer but not the answer.

We still have Third Reading on this Bill. I believe that the answer to this matter is tied up with whether the nation will be satisfied with anything less than a referendum. I believe that a clearer answer on this question might well have minimised that risk.

I am also satisfied that if this Bill becomes an Act and is put into operation, in years to come problems will have to be faced from disgruntled people in this country who would not have been disgruntled if they had known what it all meant before the final decision was taken.

Having said that, and having tried to help the Government—whether I am a federalist or the opposite of a federalist, whatever that is—I do not believe that it is appropriate at this stage to push the matter to a vote. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morris moved Amendment No. 11: After Clause 1, insert the following new clause:

Frontier protection

(". Nothing in this Act shall have the effect of requiring the abandonment of restriction of any measures in force at the periphery of the territory of the United Kingdom for—

1. (a) the purpose of control of drug traffic, terrorism and other criminal activity, and
2. (b) the passage to and from the United Kingdom of persons who are not citizens of the Union.").

The noble Lord said: My Lords, the purpose of the amendment standing in my name is to try to obtain from Her Majesty's Government an undertaking, or at least an assurance, that the declaration negotiated at the time of the negotiation of the Single European Act has some force in law.

Noble Lords will recall that the Single European Act inserted into the Treaty of Rome a new article (Article 8a) which provides for the establishment of the internal market by 1st January 1993. That short article states quite clearly that: The internal market shall comprise an area without frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty".

On the face of it that provision would appear to require that both customs points and passport controls should be abolished as from 1st January 1993. Obviously, the British Government are firmly against the removal of such controls at points of entry to the United Kingdom. That is a position with which I agree entirely, and I believe that many of your Lordships are also in agreement.

As a result, a declaration was negotiated at the time of the negotiating of the Single European Act, which is also mercifully short, which reads: Nothing in these provisions shall affect the right of Member States to take such measures as they consider necessary for the purpose of controlling immigration from third countries, and to combat terrorism, crime, traffic in drugs and illicit trading in works of art and antiques".

The dilemma lies here. Her Majesty's Government maintain that that declaration gives them the right to maintain passport and customs checks at their borders but the Commission and others challenge that interpretation. I have one question for my noble friends on the Front Bench. Who is right: Her Majesty's Government or the Commission?

If Her Majesty's Government are right in thinking that by securing that declaration, which they and other members regarded at the time as reserving a right to maintain border controls for those purposes, the wording is hardly explicit. The reference in Article 8a to areas without frontiers does not sit happily with the right to maintain general checks which is claimed by Her Majesty's Government. In addition, a declaration has less legal strength than a treaty provision. It is my submission that it is persuasive or illustrative rather than having substantive legal force.

It is on that issue, and that issue alone, that I would welcome clarification and undertakings from my noble friends on the Front Bench. I beg to move.

Lord Hacking

My Lords, I venture to suggest that, on this the ninth day of our deliberations on the Maastricht Bill, we put a little discipline into our proceedings. My noble friend who moved the amendment referred to the Treaty of Rome and the Single European Act but he did not refer to the Maastricht Treaty. He did not refer to it for the very good reason that there is nothing whatever in the Maastricht Treaty which refers to frontier controls. If that is correct, I venture to suggest to my noble friend that the amendment falls outside the Long Title of the Bill. if that is right, in my submission your Lordships should not trouble yourselves further.

There is another reason why you should not trouble yourselves further. If your Lordships examine the Treaty of Rome and the provisions concerning the free movement of goods and persons, your Lordships will discover that there is adequate power in the Treaty of Rome to deal with the matters that worry my noble friend. For that secondary reason, I suggest that your Lordships should not trouble yourselves further with the amendment and should proceed to the next one.

Lord Renton

My Lords, I have a great deal of sympathy with the purpose underlying the amendment. However, as I understand it, the Government have covered the matter by reserving our position on more than one occasion.

Earl Russell

My Lords, I listened with interest to the noble Lord, Lord Morris. I have heard the arguments before. They are the ones put forward by the Scots after 1603 for keeping a Customs post at Berwick-upon-Tweed.

Lord McIntosh of Haringey

My Lords, the Labour Party supports the maintenance of frontier controls. We believe that nothing in the treaties damages that aspect. We believe that many of the provisions of the treaty will help in combating terrorism and drugs.

Earl Ferrers

My Lords, in encapsulating that I say, "And so say all of us". However, in fairness to my noble friend, he requires more of an answer than that.

The issue of frontier controls has been discussed both in your Lordships' House and in another place on many other occasions. The Government have repeatedly made it clear that they do not accept the European Commission's interpretation of Article 8a (now to become Article 7a) in relation to free movement of persons.

The free movement provisions of the Treaty of Rome apply, in our view, only to European Community nationals. When my noble friend Lord Willoughby de Broke put forward a similar amendment at Committee stage, I again reiterated that we have no intention of abandoning frontier checks, including immigration controls on all non-European Community nationals who want to enter the United Kingdom.

We have always been emphatic that frontier controls between the United Kingdom and other member states should be maintained, and it was for that reason that we obtained in 1985 the declaration which is attached to the Single European Act: that we (and other European Community states) have the right to prevent drug trafficking, terrorism and illegal immigration from entering our respective countries.

We believe in co-operating closely with our partners in the European Community on immigration and asylum matters, on the fight against drugs, terrorism and other serious forms of crime, where we all face common problems. That is why we argued for, and why there now is in the Maastricht Treaty, the inter-governmental interior and justice pillar. That is the reason for that inclusion.

Of course, the Twelve member states operate different immigration systems, and each state is subject to different levels of different forms of pressure. We in the United Kingdom happen to be an island and happen to be surrounded by water. That happens to provide us with natural safeguards whose effectiveness we have no intention whatsoever of compromising.

The United Kingdom's position is well known on these matters. The Maastricht Treaty does not alter the position regarding internal frontiers one iota, or the ability of citizens or member states to move freely between the states.

There is therefore no reason to amend the Bill, and the United Kingdom's position will not be strengthened by inserting a provision of the kind suggested by my noble friend. I hope he will agree that it would be best not to be so altered.

10.15 p.m.

Lord Morris

My Lords, when I moved the amendment I made it as clear as I could that it was in the nature of a probing amendment. In thanking my noble friend, all I have to say is that rarely have I received an answer so close to the one I sought. For that, I am extremely grateful to him and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 12 to 15 not moved.]

Lord Beloff moved Amendment No. 16: After Clause 1, insert the following new clause:

Common Foreign and Security Policy: operational expenditure

(". Her Majesty's Government shall not, in the Council or in any other institution of the Community or the Union, agree to the payment out of the Community budget of any operational expenditure in the field of foreign and security policy under Article 199 of Title II of the Treaty on European. Union unless such specific agreement shall first have been authorised by Act of Parliament.").

The noble Lord said: My Lords, it is a little unfortunate that the groupings today did not include Amendments Nos. 16 and 17, which relate to defence and security matters, with an amendment which was moved earlier by the noble Lord, Lord Pearson of Rannoch. Statements were made about the Community's likely responsibilities in the field of security which are of relevance to the proposals for the pillar affecting matters in the Treaty on European Union which we are discussing. It is a pity that my noble friend Lord Finsberg is not in his place since he spoke at some length on the topic. Even in his absence, I am afraid I must say that the picture which he drew about the relations of WEU and NATO and our own responsibilities in the area was misleading. The fact is that there has been, in relation to security and defence matters and foreign policy matters—which are entangled with them—a high degree of ambiguity which has not been resolved.

Noble Lords may have seen the admirable paper on the subject prepared by the House of Commons Library; Research Paper 93/27 issued in March. It points out—and I think this is unanswerable—that at the heart of the discussion as to whether there should be a security aspect of the Community's affairs there has lain an unanswered question. Although it is said that it is in some way a relationship between NATO and WEU which will be the instrument there are, and have been, two totally different conceptions as to what that relationship should be. On the one hand, there is the conception which is supported by Her Majesty's Government and certain other governments—notably that of the Netherlands—that WEU should simply be a way of strengthening the European component of European defence, but that the overall responsibility should remain entirely with NATO which alone has the capacity to mobilise and direct forces if those were needed.

On the other hand, there is the view held notably by the French, and to some extent, the Spaniards, that WEU should look towards replacing NATO because it does not believe in the perpetuity of the American and Canadian participation in our defence. As the research paper points out, those issues have never been resolved; they are always fudged when we come to debate them and it is important in relation to the Treaty on European Union. The point of the amendments is to try to obtain further clarification.

Although it is said of the treaty that the pillar relating to defence and security matters is not part of the Community—that is to say, it is not part of the legal and administrative machinery by which the Community operates—it is made clear that it is the intention that the Community itself should eventually be superseded by the European Union, and in that case this difference will cease to exist. There will be one set of institutions; namely, the institutions of the European Union. That is made clear by another quite important document, the draft by the Institutional Affairs Committee of the European Parliament entitled The Constitution of the Union, which makes it abundantly clear that the institutions of the Union will comprise, like the institutions of any state, responsibility in matters of security and defence.

The difficulty throughout our discussions on the Maastricht Treaty has been that the Government and their supporters constantly refer to the limitations in the Treaty of Maastricht itself, the safeguards that exist and those that have been promoted by Her Majesty's Government. On the other hand, those of us who express doubts are more concerned with the movement which is implicit in the treaty towards European union—that is to say, towards a European state. The example that we have here in the field of defence and security is perhaps the most obvious. It is indeed so obvious that I do not wish at this hour to prolong the discussion. However, I have one particular question that I should like to ask my noble friend on the Front Bench. Before agreeing to the inclusion of the defence pillar in the treaty (or next to the treaty) were the defence advisers, the defence chiefs, of the United Kingdom consulted as to the practicability of the proposed institutional set-up? It is very important for us to know whether, in going ahead in this way, the Government are taking with them the Armed Services, on which ultimately our defence and security depend. I beg to move.

Lord Bruce of Donington

My Lords, I rise to support Amendment No. 16, which, among other things, refers to payments out of the Community budget. Before doing so, I should like to offer the House, and in particular the noble Baroness, Lady Elles, my apologies. Owing to an undertaking given to terminate the debate as close as possible to eleven o'clock, I shall be unable to move those amendments which would have enabled me to enlarge on the role of the European Parliament and the whole of the budgetary impact. Subject to the exigences of business tomorrow, I shall endeavour to seek a peg upon which to hang that particular hat. If I do not succeed, I shall write to the noble Baroness.

In regard to the particular amendment under consideration, quite an amount of expense is incurred in carrying out the European policy. These matters are dealt with in an undated document issued by the Foreign Office, reference FCO/EC Lords/1/93, which sets out the whole of the financial basis in an indirect sense in carrying out the common foreign and security policy.

It is quite clear that expenditure will cover a number of heads. I should like the noble Baroness in her reply to confirm that the expenditure will be incurred under those heads, that it will be properly accounted for and that we shall be notified of the expense involved. It is quite clear that from time to time the Foreign Ministers of member states and representatives of the Commission will meet regularly, at least three times a year. That will cause extra public expenditure. Then the political directors from the member states and the Commission meet regularly once a month to discuss EPC issues and to prepare Ministers' discussions. Incidentally, it will be useful to find out more about those strange animals—political directors. By whom are they appointed? What are their precise functions? However, I pass over that point for the time being.

The Foreign Office memorandum goes on to say that European correspondents from member states and the Commission meet regularly, usually in parallel with the political directors, and are responsible for the day-to-day co-ordination of the European policy structure. From time to time experts from member states and the Commission meet regularly in working groups to discuss EPC issues in detail and report to the Political Committee. Could we have more particulars, including costs of the maintenance of the Political Committee? There is also an EPC secretariat, staffed with secondees from member states, based in Brussels and providing administrative back-up for the presidency. All that costs money. One likes to know where the money comes from, where it appears in the budget and who approves it.

Then there is also the confidential communications system which was set up in 1973 and which provides a direct communications link between member states, the EPC secretariat and the Commission. That also has a cost which surely it would be in order for us to know about. Finally, there are the member states' ambassadors and representatives of third countries who meet from time to time.

That all amounts to a formidable network or apparatus of committees, political directors, political committees, correspondents, ambassadors and everybody else, all set up under the Single European Act but now to be incorporated in a separate pillar. All we ask is for information about that. We should like to know how the cost will be covered in budgetary terms and, if I may say so, whether it will be subject to the same kind of Treasury scrutiny as the Treasury is reputed to exercise over the Community Budget. All that information would be very helpful. To provide it would be in the spirit of the amendment which I trust the noble Baroness will not take amiss and with which she will readily agree.

Lord Monson

My Lords, I should like to speak specifically to Amendment No. 17, with which Amendment No. 16 is grouped. The Prime Minister has made it clear on many occasions that notwithstanding the partial concessions on sovereignty made in the Treaty of Rome, the Single European Act and now the Treaty on European Union, essentially he favours a Europe of independent nation states not so very far removed from de Gaulle's L'Europe des patries.

This amendment ensures that there will be no creeping progress towards a unitary state and that the triple pillars of the treaty will remain intact. It does no more than dot the "i's" and cross the "t's" of assurances already given to us by the Government. For that reason I hope that it will be accepted.

Baroness Park of Monmouth

My Lords, I had intended to speak at greater length but given the lateness of the hour I shall spare everybody my better glimpses of the obvious and make one statement on which I feel very strongly. I believe that it is not reasonable to accept once again a major commitment without the resources to match. Any great enterprise is only as successful as the investment and effort put into it. It is absolutely vital, if we are going wholeheartedly into the Community, that we should have an adequate supply of experienced diplomats and experts from the ministries, backed up by a new entry which is continually renewed, that will be available at an early stage to scrutinise proposals and Green Papers, to be involved in the early stages of policy-making and to play an active part working within or with the whole Community infrastructure of committees, where the French and others are so well established, as well as reinforcing the permanent representation in Brussels. They must also be in sufficient strength at home to brief Ministers. New Ministers will necessarily initially have only a superficial and peripheral knowledge of the complex European machinery.

The same argument holds good for the Ministry of Defence officials and the staff officers who will be increasingly called upon to perform the same task when it comes to harmonising the Community, the WEU, CSCE and NATO. To judge by the new defence White Paper, many such officers will be expected to wear three or four hats. They are doing so already. We must have enough skilled staff in the areas of foreign, defence and security policy to protect the paramount position of NATO and to ensure that the implications of any proposed action are properly related to our other national commitments and the resource implications clearly identified.

I expressed my anxiety at Committee stage over the fact that the Select Committee on Defence in the other place alone took no evidence on what the implications of Maastricht were. The implications will have to be clearly identified and recognised and provided for. The Minister's observations on Amendment No. 8 earlier today have said it all. It would be a classical case of Treasury short-term false economy, and a high cost will be paid by the nation for mistakes if we allow cuts in the FCO budget, already charged with such extraordinary commitments as Operation Rockingham, and the MoD and defence budget in this coming Autumn Budget.

We must first ensure that we have enough people with the right skills and experience to defend our interests and make our positive contribution in all areas of Community decision making. Otherwise the skilled negotiation which won us the pillar concept and much else will have been wasted and we shall lose, not gain, from our entry because we shall be at risk of being unable to exercise influence for lack of staff resources. One of our chief strengths compared with other members of the Community has been the professional skills of our negotiators and the experience of our civil servants. We must not make their task impossible. I hope very much that my noble friend the Minister can reassure us on this question of adequate human resources.

Lord Brougham and Vaux

My Lords, before my noble friend sits down, is she really suggesting that the Government are incapable of running this country?

Baroness Park of Monmouth

My Lords, naturally not. But I think that I am entitled to express anxiety.

Lord Sanderson of Bowden

My Lords, it appears to me that Amendment No. 16 forces the United Kingdom to block spending on operational action under foreign and security policy unless prior consent for spending has been granted by an Act of Parliament. I do not know whether that is a realistic situation to place the United Kingdom in because very often decisions which may have to be made with other European countries jointly may have to be taken in an emergency and very quickly indeed. It leads me to think that it would be folly to place obstacles in the path of common funding of operational matters should those matters need to be decided on quickly and speedily.

Baroness Blackstone

My Lords, I do not wish to detain the House very long and unlike my noble friend Lord Clinton-Davis in speaking in an earlier debate on the powers of the Commission, I do not intend to play the Minister's role in responding to what has been said. I would, however, like to make one or two comments.

I was not entirely clear in what respect the noble Lord, Lord Beloff, was speaking to the amendment, although I have to admit that I agree with him that there are some ambiguities in relation to the position on a common defence policy. Indeed, I raised those at Second Reading. I hope that the Minister will be able to enlighten us a little more on what the Government think will be the likely outcome of the arrangements that are made in the treaty with respect to a common defence policy.

But it is true that there are differences between different countries, as the noble Lord, Lord Beloff, pointed out, and they are set out in the House of Commons' research paper. But there are of course differences between members of the European Community on a wide range of issues. That does not mean that at some point we cannot work out those differences and come to an agreement.

I wish briefly to comment on what my noble friend Lord Bruce has said. I was puzzled by some of his remarks. Foreign ministers already meet regularly to discuss European political co-operation. Experts have been meeting regularly to discuss foreign and security questions. Although it costs money for foreign ministers to meet, we should welcome the fact that they do meet. In an increasingly interdependent world that is a relatively small amount of expenditure which we can well afford. I have no doubt that the Minister will confirm that. I suspect that she will agree with what I am saying; namely, that the amount of extra expenditure involved in these new arrangements for the consideration of security and foreign policies is minimal over and above what is already spent in that area.

Baroness Chalker of Wallasey

My Lords, in responding to this debate on Amendment No. 16 which is taken with Amendment No. 17, I find myself in some difficulty, as did the noble Baroness, Lady Blackstone. My noble friend Lord Beloff, except rather tangentially, did not actually refer to the content of Amendment No. 16 which he was moving.

However, he asked one or two key questions which I shall do my best to answer. In addition to that, perhaps I may ask him to read again the debates which we had both at Second Reading and at Committee stage in your Lordships' House, and the debate which we had on Amendment No. 2 earlier this evening. Nobody in this House would thank me if I were to regurgitate everything that was said on that amendment this evening so I do not intend to do so.

However, it is important to get clear in our minds that the common foreign and security policy pillar is very much a natural evolution from the European political co-operation which we have enjoyed since 1986–87 and the passing of the Single European Act. I say that having participated for about three years in the deliberations concerning -European political co-operation both with my noble friend Lord Howe of Aberavon, when he was Foreign Secretary, and on my own account when he could not be present.

We have evolved—mainly through the hard work of my right honourable friends the Foreign Secretary and the Prime Minister—a sensible way forward on common and foreign security policy; that is, that we do together, and by unanimity, those things which we decide to do. But as I made clear to my noble friend Lord Pearson of Rannoch in an earlier debate, we can leave outside those defence questions which are covered by Article J.4(3) in our deliberations.

There was one real fear in what my noble friend Lord Beloff said tonight in moving Amendment No. 16. He referred to a draft paper of the European Parliament as if it were an established fact. He referred to commentaries in House of Commons' papers as if they also were established fact and not commentary. Neither is established fact. I know that the draft paper of the European Parliament expresses aspirations for the future of a kind which have often been expressed in the European Parliament. But it is not those issuing such papers or even writing them, who have decided such matters in the past and neither will they decide them in future. It is the member states by common accord under the CFSP pillar which will decide what happens in this vein. I can assure my noble friend Lord Beloff that nothing will happen without the agreement of the United Kingdom and other member states, such as Denmark, which to a large extent share our views on the development of the Community. I really do believe that he is seeing ghosts where none exists.

I believe that it was my noble friend Lord Beloff who also commented about consultation with the defence staff before going down this path. If it was another noble Lord, I hope that my noble friend will forgive me. However, I must advise the House that it is Ministers who make policy in this country. We value greatly our Chiefs of Staff, as my noble friend Lady Park of Monmouth knows, but they advise the Secretary of State for Defence and the Foreign Secretary. We rarely move except in concert, but occasionally Ministers will have to make decisions which, with all due respect to our excellent Chiefs of Staff, both currently and previously, they may not agree with in every detail. But it is Ministers who are elected to govern and Ministers who must take the responsibility for decisions based on the advice which is freely given. I know of nothing that we have done in moving towards the common foreign and security policy which is at variance with those normal procedures. I sincerely hope that my noble friend Lord Beloff will accept that such anxieties have no basis.

Amendment No. 16 is of considerable importance if one realises that its purpose is to prevent the Government agreeing to the payment of operational expenditure under the CFSP pillar from the Community budget without Parliament's specific approval. That brings me to the questions asked by the noble Lord, Lord Bruce of Donington, who queried the meetings of Foreign Ministers, political directors and European correspondents. Perhaps I may try to explain exactly what that entails. As I have said before, it is a natural evolution from European political co-operation in which we needed to have a proper means of communication between Foreign Ministers, the EPC secretariat and the Committee when it is actually sitting. European political directors are nominated by their own national governments. In our case, the political director is usually a deputy under-secretary of state at the Foreign and Commonwealth Office. They are subject at all times to the direction of Ministers in the discussions they undertake. They are, indeed, advised by working groups, as are many different parts of the Community. If I want a medical judgment taken for family planning purposes, for instance, in the development field, as I am not an expert on family planning I have a working group of experts to advise me.

The same policy planning goes on with European political co-operation, shortly to be CFSP. The political directors, therefore, are national civil servants who meet together on a monthly basis under the direction of their Ministers to work out resolutions and the common positions which we frequently take to other bodies, such as the United Nations Security Council, in order to try to find a way forward to resolve some very deep problems. I give one example of the way in which EPC has worked together in the past. I refer to the Middle East peace process, where the directors have met, often after the defence chiefs have talked together, and have then advised Ministers who meet in political co-operation themselves.

The costs are no greater than the costs of the way in which we operate at the moment. The European correspondents, to whom the noble Lord, Lord Bruce, referred, are in fact the resident representatives in Brussels of the member states and carry out what I call the "day-to-day devilling" of the wording before the political directors come from London for their political director meetings in order to support Ministers when they meet in EPC. There will be no additional cost, but like the running costs of any organisation, it is subject to Treasury and departmental scrutiny. So one of the things that I should like to say on Amendment No. 16 is that the Community budget will be used for administrative expenditure. A decision to use the Community budget for any operational expenditure requires the unanimity of member states meeting in CFSP. The UK therefore has a block on its use if we do not agree. There may be circumstances in which it makes sense to use the Community budget to implement a policy agreed by unanimity. I do not want to chance my hand at guessing what that might be. I believe that we should have the possibility of agreement by unanimity.

If the agreement of Parliament to paying for expenditure under the CFSP pillar (properly chargeable to the Community budget under Article 199 of the Treaty of Rome, which would only be properly chargeable if it were a unanimous decision) were withheld for any reason, the UK would not be able to meet its treaty obligations. The whole of Amendment No. 16 goes against the spirit of the CFSP which my right honourable friends the Prime Minister and the Foreign Secretary fought so hard to obtain upon the basis that we have now secured it. The article relating to that is Article J.11.2. I say that for reference only.

We went from discussing Amendment No. 16 and wider matters to some of the anxieties felt by my noble friend Lady Park of Monmouth. I understand her anxieties. I know that she wishes to be helpful when she speaks of future budgetary discussions, but those have not yet taken place and your Lordships will be well aware that I would not be at liberty to disclose the content of those discussions even if they had taken place. But I can assure my noble friend that we have highly skilled staff. We are constantly ensuring that we have excellent new young skilled staff coming up the promotion pipeline to serve this nation at home, in the CFSP, in NATO and in the WEU. I see no reason for that to be changed. With the end of the cold war, we may find different ways of using those staff resources and better ways of using modern technology, but we intend to obtain the best possible value from all such resources.

The noble Lord, Lord Monson, spoke to Amendment No. 17. My noble and learned friend the Lord Chancellor made it clear on Second Reading on 8th June that the European Union has no legal personality. It is the Community which has that legal personality and therefore concludes international agreements on trade. It is not the Union that concludes those agreements. In the area of the common foreign and security policy, it is the member states that act and conclude any treaties that arise. Therefore, the noble Lord's anxieties do not have the force that he gave them. It is clear that under CFSP it is the member states that act.

It would not be appropriate to include in legislation a new clause that binds the Government, such as Amendment No. 17 provides. It would not ,be appropriate to give the European Community a legal personality, because that would require, first, the accord of all member states at an inter-governmental conference; and, secondly, ratification by all member states in accordance with their respective constitutional requirements. Here, that would require a further Act of Parliament. I do not believe that that is what the noble Lord, Lord Monson, wants.

I hope that your Lordships will conclude from what I have said about Amendments Nos. 16 and 17 that neither are appropriate to what we are trying to achieve. We have safeguards to cover the expenditure problems to which the noble Lord, Lord Bruce, referred when speaking to Amendment No. 16.

As regards Amendment No. 17, I do not believe that the matter is appropriate for legislation. It is a matter for the conduct of foreign policy. Therefore, I ask my noble friend not to press Amendments Nos. 16 and 17. If they should be so pressed, I ask the House to reject them.

Lord Beloff

My Lords, since it is well past my bedtime I am particularly glad that the Minister has done her best to dispel my nightmares. Whether she has succeeded is a matter I must think about. Of course, I appreciate that what is said by one committee of the European Parliament is not an enormously important piece of evidence as to what may be going on, although it is not without its interest. However, I recollect that throughout the years we have constantly been assured that things which seem to us extravagant would never happen have still happened. I consider that I have a dynamic view of Europe's history whereas those who support the treaty have a static view. However, at this time of night I shall not pursue that and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 17 not moved.]

Baroness Trumpington

My Lords. I beg to move that further consideration on Report be now adjourned.

Moved accordingly, and, on Question, Motion agreed to.

House adjourned at eight minutes before eleven o'clock.