EC Exclusive Competence: Scope (Hansard, 17 June 1993)

§ The Lord Chancellor (Lord Mackay of Clashfern)
My Lords, areas which fall within the exclusive competence of the European Community are those where the comprehensive nature of the treaty's requirements for the Community to adopt a common policy prevents action within the ambit of that policy by member states. In all other areas member states remain competent to act provided their action does not conflict with existing Community rules. An example of an area of exclusive competence is the common agriculture policy. Not all action on agriculture by member states is excluded. For example, the law on agriculture holdings and fiscal policy on agriculture remain for member states.

§ Lord Pearson of Rannoch
My Lords, I thank my noble and learned friend for that reply. It goes to the heart of the Government's position when they claim that subsidiarity will be our shield against further attacks on our sovereignty by the Community. Since my noble and learned friend has not defined precisely which areas will be protected by the somewhat illusory shield of subsidiarity and those which will not, can he say by whom this vital decision will be taken? Will it 1663 be taken by the unelected Commission? Or will it be taken by the Council? If the decision is taken by the Council, will it be a majority or a unanimous vote? Or will the decision be taken by the Luxembourg court? If the court is to have anything to do with the decision, does my noble and learned friend agree with my right honourable and learned friend the Attorney-General that our concept of judicial review is not available in that court?

§ The Lord Chancellor
My Lords, the definition of these areas is on the lines that I have sought to describe. I believe that that can be applied to any term of the treaty. However, as I sought to point out in the speech that I made on Second Reading of the European Communities (Amendment) Bill, the third paragraph of Article 3b on subsidiarity applies whether or not the area in question is an area of exclusive competence. Therefore, the rule of subsidiarity can have effect both within and outside the areas of exclusive competence of the Community. The question of what is such an area or what is the effect of subsidiarity, if disputed, is ultimately a matter for the Court of Justice of the European Community. Its decision is a decision on a matter of Community law. My noble friend referred to an answer by my right honourable and learned friend the Attorney-General. It is true that the procedures of the Court of Justice are somewhat different from ours. But the procedures of the Court of Justice enable the kind of question asked by my noble friend to be fairly and fully discussed and decided.

Lord Bruce of Donington
My Lords, is the noble and learned Lord aware, as I am sure he is, of the 24-page document published by the European Commission exactly on this subject? Is the noble and learned Lord aware that the document contradicts the treaty under discussion in that there is no such thing as exclusive competence referred to in Article 3b, but only the notion of exclusive competence? Further, is he aware that the document does not list the areas covered by that term?
Is the noble and learned Lord aware that the Commission itself has further contributed to the confusion, which we trust the noble and learned Lord will assist us in resolving, as regards subsidiarity, which now becomes muddled up, if I may use the term, with intensity, proportionality, the functional and material elements of it, the complementary measures required even to consider it, the hierarchy of norms, which is another bit of gobbledegook, and so on? Is the noble and learned Lord aware that this whole question has now become shrouded in such ambiguity as to become almost an abuse of Parliament?

§ The Lord Chancellor
My Lords, I am not sure that I have discerned, in the clarity of the noble Lord's question, the heart of the question. If it is a question of the difference between a Community document and the treaty, there is no doubt which is the decisive document; namely, the treaty. It is of course possible to shroud even the clearest concept in mystery if one cares to aim for that. I have sought to indicate with as 1664 much clarity as I can command what the scope of that doctrine is. I believe that it is an important doctrine and that it is reasonably clearly set out in the three paragraphs of Article 3b of the treaty.

§ Lord Hailsham of Saint Marylebone
My Lords, is it not the case that some of the most valuable legal concepts are really much simpler than some people think; for instance, that of the reasonable man? Is it not the case that they are matters of degree and fact to be decided on all the circumstances of the case and that anybody with a certain amount of common sense finds no difficulty with them?

§ The Lord Chancellor
My Lords, I respectfully agree with my noble and learned friend. It is of course possible for people to argue at almost indefinite length about what the reasonable man would do in particular circumstances, but that in no way detracts from the value of the concept in our law. It has proved a valuable concept over many generations. I believe that subsidiarity may do the same.

§ Baroness Seear
My Lords, will the noble and learned Lord accept that many of us are overwhelmed with gratitude for the clarity with which he has managed to disentangle these complex arguments? Does he also agree that we are going to have, I believe, six days in which to discuss the matter in connection with the Maastricht Bill and that that will be a more suitable time for dealing with it.

§ The Lord Chancellor
My Lords, when Questions are put down it is the responsibility of the Government and of myself, when they happen to be allotted to me, to try to answer them within the confines of the time allowed at Question Time. I am grateful for the noble Baroness's first question.

§ Lord Renton
My Lords, while accepting what my noble and learned friend the Lord Chancellor has said in answer to the various questions put to him, does he agree that our courts will have to take judicial notice from time to time of the decisions of the European Court of Justice as to the application of subsidiarity? Will our courts be able to rule, when the issue arises, following the precedent of the Court of Justice?

§ The Lord Chancellor
My Lords, it is perhaps an existing application of the doctrine of subsidiarity that the system of law within the Community is that the national courts are responsible for enforcing the law within member states but that when a question of Community law arises it may be referred for the opinion of the Court of Justice in Luxembourg. If the question arises in a final court of appeal, it must be referred to Luxembourg. The decision of the European Court of Justice in Luxembourg on the question of European law is final: it is then given effect to in the manner in which the national court thinks appropriate in applying the law within the member state.

§ Lord Monson
My Lords, in order to clarify this vital question of subsidiarity, would not the noble and learned Lord agree that Article B of Title 1 of the 1665 treaty states categorically that the acquis communautaire must be maintained in full? Does that not mean, in effect, that everything which has already been devolved to the Community by the member states can never be devolved back to them, and that therefore subsidiarity can apply only to new laws and regulations, and not to existing ones?

§ The Lord Chancellor
My Lords, strictly speaking, as adopted in the treaty, the new article will apply from the date of ratification of the treaty, which I hope will not be unduly delayed. However, the principle, once accepted, may well actuate proposals for changing the existing law. It could well be that existing laws might be shorn of some unnecessary detail as a result of a desire in the Community as a whole to simplify matters. If the Community moved in that direction, it would be in accordance with public opinion not only here, but in other member states as well.

§ The Earl of Onslow
My Lords, is not the only defined definition of subsidiarity a doctrine of the Roman Catholic Church which states that the Bishop of Rome shall allow the bishops and others in their own dioceses to interpret something which does not interest him at the time? If, however, he decides that it is of his interest, he can bring it back just like that. At the moment, that is the only definition of subsidiarity. Does my noble and learned friend agree that that is a rather clearer definition than the one which he has just given, because if what he has said is a clear definition, I do not know what it would be like if he was talking gobbledegook?

§ The Lord Chancellor
My Lords, I do not agree that the definition to which my noble friend has just referred is the only one. Indeed, the latter part of his question appears to assume that it is not, because the definition of the principle in Article 3b of the treaty does not refer in any way to the Bishop of Rome. I have to say that the words used in the definition appear to me to be reasonably clear. Their application may not always be as clear, but that is often the way in relation to legal concepts. They have to be applied to the circumstances of the particular case. This Question is not so much directed to the definition of subsidiarity as to the areas of exclusive competence.

§ Lord Stoddart of Swindon
My Lords, have we not already seen a great deal of creeping competence within the Community? Is it not implicit in the Maastricht Treaty that there are to be many more areas in which the Community will be involved where previously it has not been involved? Does not experience tell us that the Community is a centralising Community and that the European Court will, in general, come down in favour of that? That is the real question. And before we pass this treaty, would it not be as well to know exactly what we are doing?

§ The Lord Chancellor
My Lords, it is always advisable to know exactly what we are doing, and I commend that course. In so far as I can assist the noble Lord to know exactly what he is doing in 1666 passing this treaty, as I hope that we shall, I shall be happy to do so. It is often said that the European Court of Justice has a centralising influence. The truth is, I believe, that the European Court of Justice endeavours to give effect as fully as it can to the terms of the treaty taken in their contexts. I have no doubt that it would seek to apply the same principles faithfully to construction of Article 3b of the new treaty when it becomes part of the law of the Community

Noble Lords
Next Question!

§ The Lord Privy Seal (Lord Wakeham)
My Lords, we should be fair to the noble Lord, Lord Jay, and move on to the next Question.