European Communities (Amendment) Bill

HL Deb 28 June 1993 vol 547 cc624-57

5.30 p.m.

House again in Committee on Clause I.

[Amendments Nos. 38 to 41 not moved.]

[Amendments Nos. 42 to 46 had been withdrawn from the Marshalled List.]

Lord Jay moved Amendment No. 47:

Page 1, line 9, after ("II") insert ("except for the following words in Article 3b: "In areas which do not fall within its exclusive competence,"").

The noble Lord said: I do not propose to move Amendments Nos. 48 and 49. Amendment No. 47 is intended to strengthen the article which establishes the principle of subsidiarity. It attempts to do so by omitting the words in Article 3b:

In areas which do not fall within its exclusive competence".

Not merely the principle of subsidiarity but the actual article of the treaty embodying the principle are of great importance for two reasons: first, intrinsically, and secondly, because the Prime Minister claims the article as a great achievement in the Maastricht negotiations.

It is my firm conviction that on a point of law no British Lord Chancellor can be wrong. I am not sure that I would say the same of former Lord Chancellors, but I let that pass. I am delighted to see that the noble and learned Lord the Lord Chancellor is with us for this debate because he understands it better than all the rest of us. In his Second Reading speech, he accused me of not having read the whole article. On the point of mere fact, he was wrong; I had read it, but I took it to mean what it should mean in reasonably plain English. The words in the final paragraph are: Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty".

The phrase "go beyond" is perhaps rather imprecise in a formal document. I take it to mean, first, that the Community cannot act outside the limits of the treaty which I should have thought one would take for granted anyway. Secondly, the Community should not use tougher legislative methods when lighter ones would do. However, that is not the whole story and it is not what most people regard as the "principle of subsidiarity". Those words are used in paragraph 2.

To understand Article 3b fully it is worth while, since it is brief, reading it to the Committee. The first paragraph says: The Community shall act within the limits of the powers conferred upon it by this Treaty and the objectives assigned to it therein". The second paragraph states: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, 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". The third paragraph states: Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty". The final paragraph applies to all issues, but the words of the second paragraph, including the expression "the principle of subsidiarity", apply only to issues not within the exclusive competence of the Community. The words of paragraph 2 surely cannot be supposed to mean anything else. That means that, for the purposes of the article, there are two classes of issues: those within the exclusive competence of the Community and those which are outside it. For those within the Community's competence, the Commission merely has to prove that the objectives of the action are objectives of the treaty. It does not have to prove what paragraph 2 calls "the principle of subsidiarity".

For those issues outside the Community's competence, the Commission would have to prove two things: first, that they were necessary to achieve the objectives of the treaty; secondly, that they could not be sufficiently achieved by the member states. Most of us think that that is what is meant by subsidiarity.

It seems to me, therefore, that the upshot is that there are a number of issues to which the paragraph 2 criterion—that the objectives cannot be sufficiently achieved by member states, which the article calls the principles of subsidiarity—does not apply. If that were not so, there could surely be no reason for including in Article 3b the words: In areas which do not fall within [the Community's] exclusive competence". On Second Reading, some people may have misunderstood the exact meaning of the article and thought that all issues were covered by both criteria. For that reason, in judging the value of the article and the Prime Minister's negotiating triumph, it is essential for the Committee to know which issues or "areas", as Article 3b oddly calls them, fall within which class. I wonder whether the Government can publish a list of individual issues which are either within or without the exclusive competence of the Community.

As a matter of common sense, it would appear that there could be many issues which, though they could perfectly well be handled by the member states, could nevertheless be taken over by the Commission, simply because some action was needed to achieve the objectives of the treaty and because they came within the Commission's exclusive competence.

If the Government could publish a list, or at least a summary of the individual issues which fall into the two groups, then I think we should at least have made some progress in understanding exactly what has been achieved. If they cannot and they can only take refuge in some general statement which is only intelligible to the small core of great experts on Brussels theology who have sprung up around us, both here and in the heart of Europe, then it will not be possible for most of us to judge realistically how much Article 3b is worth. However, we should then at least have established that it covers a materially smaller area than some people have been led to believe.

Finally, who is to decide a dispute as to whether a specific issue falls into one class or the other. What is the procedure by which the Government, an individual or, say, a local authority can challenge a claim by the Commission? Amendment No. 47 (at least this is clear) by omitting the words specified limits the Commission's powers to claim exemption from the principle of subsidiarity. Because it strengthens that principle, I contend that it deserves the support of all those who want to strengthen and enforce the genuine principle of subsidiarity. I beg to move.

Lord Pearson of Rannoch

I support this group of amendments, particularly Amendments Nos. 47, 397 and 430 to which I have put my name. My noble and learned friend the Lord Chancellor said at Second Reading that the principle of subsidiarity is: a complicated safeguard but one that lies at the heart of the British position in relation to the development of the Community at Maastricht and beyond".—[Officia/ Report, 8/6/93; cols. 712–713.] In other words, subsidiarity is to be the vital shield which we can use to defend ourselves against the further erosion of our national sovereignty to Europe. The trouble is that unless the Government can tell us clearly when we can and when we cannot use that shield, it does not appear to have much value. Surely a shield is not of much help to a small man when fighting against a larger, stronger and better armed man if the big man decides when his puny adversary can wear it, arid when he cannot. Unless the Government can define exactly when we can put the shield on and when we cannot, we shall be in the position of that small man.

I say that the Community is larger and better armed than we are because we have only 10 votes out of 76 on the Council, where 54 votes constitute a qualified majority. I say it also because the impartiality of the Luxembourg court is also in doubt. I shall come back to that point.

If we take some current examples which come at us from the defects of the Single European Act, if the Community wishes to have its way with us by imposing the acquired rights directive on us, which it has already done, or the 48-hour working week, or new rules limiting the time when our young people may work, then it does not seem that there is much that we can do about it. One hears rumours that other directives are hidden under the blotting-paper in Brussels which will be winging our way as soon as the treaty is ratified. Indeed, one hears dark rumours of a further 19 directives, mostly in the areas of social policy and working practice, which are being kept sedated until the treaty is ratified. I wonder if my noble and learned friend is in a position to confirm or deny that rumour. I should be most grateful to hear from him.

Amendment No. 430 seems entirely sensible. It would make sure that Parliament knew and approved the areas where we can use our shield and those where it is to be denied to us. If Parliament did not approve of the areas where we are to be left defenceless, the treaty could not be ratified. Surely that seems prudent. Again, if my noble and learned friend does not agree, can he say why he does not?

Amendment No. 397 is a milder form of protection of the last remaining vestiges of our national sovereignty. It would merely require an annual review of the areas where our shield had been taken from us, and of the areas where the enemy had managed to share it with us. It would also require the Government of the day to tell us how they proposed to re-acquire any of the powers which we had ceded to Europe and which we then decided we wanted to get back.

That may not be so easy. I understand that there is no possibility of taking back powers or areas of responsibility once they have been handed over to Brussels and Luxembourg unless the other members of the Community agree. I ask my noble and learned friend whether that understanding is correct, or is there something in the treaty which I have missed which enables us in future to change our minds and re-acquire what we have lost? I should be most grateful for my noble and learned friend's answer.

Amendment No. 47 would go some way to ensuring that we are better able to use our shield when we want to and not just when our larger adversary decides that he does not mind if we do. Even if we took out of Article 3b the words, In areas which do not fall within its exclusive competence we would still be left with the problem of exactly who decided when we could use our shield and how. But we would have a more sporting chance of arguing our case, because there would no longer be the assumption that there are indeed large areas where we are to be left defenceless.

I fear that in order to see exactly how unsatisfactory is the proposed Article 3b in its entirety, we have only to examine a little more closely the words of my noble and learned friend the Lord Chancellor at Second Reading. He referred to Article 3b as having three paragraphs, which sounds rather daunting. In fact, it contains only three sentences. The first sentence says that the Community shall not step outside the huge powers granted to it. That is obvious enough, one would have thought. The third sentence says that the Community shall not do more than is necessary to achieve the objects of the Treaty—being principally those of political and monetary union. I suppose that we should also all be grateful for that.

But it is upon the words of my noble and learned friend the Lord Chancellor when explaining the second sentence of Article 3b that I ask noble Lords to concentrate. On 8th June at col. 713 of the Official Report my noble and learned friend said: In the second paragraph"— I believe that he meant "sentence"— there is a rule to answer the question: should the Community act? This paragraph applies to areas that do not fall within the Community's exclusive competence". I have to say that that appears to be the best that my noble and learned friend could do to justify this extraordinary paragraph. The Committee will note that the question "Should the Community act?" is not answered. These are the vital questions when discussing the meaning and value of subsidiarity. Should the Community act? Who decides whether the Community should act? What can we do about it if we do not agree and we are up against a qualified majority vote?

I asked those questions in a debate in this Chamber on 17th February and did not get an answer. I asked them again in the early hours of the morning of 8th June at Second Reading (at col. 682). I asked them again in a Starred Question on 17th June (at cols. 1663–1664). On none of those occasions did I get a satisfactory answer. On the last occasion my noble and learned friend seemed to agree that in the final analysis it will be the Luxembourg court which decides all these questions. My noble and learned friend agreed that the procedures of the Luxembourg court are somewhat different from ours. I think he tacitly agreed with my right honourable and learned friend the Attorney-General that our concept of judicial review is simply not available in the Luxembourg court. I thought that my noble and learned friend was less than reassuring that the Luxembourg court would decide matters fairly in the interests of the United Kingdom. Can my noble and learned friend give the Committee that assurance today?

5.45 p.m.

Lord Tebbit

As has been said, these amendments relate to the concept of subsidiarity. That concept is enormously important to the way in which we should look at the treaty. I should like, first, therefore, to draw the Committee's attention to an article which is by no means wholly favourable to the view that I should like to take of these matters. However, such important issues are raised in it that it is well worth examination. I refer to an article in the New Law Journal of 11th September last year by Professor Lasok. He observes —and I think it is important to have that in our minds right at the beginning— In the Continental legal systems, general principles fulfil two functions: as guidelines to legislation and as aids to interpretation and adjudication. They can be found in the written constitutions and codes of law. Thus the legislator is furnished with points of reference when devising specific rules.

If confronted with a novel problem for which there are no points of reference, the [continental] legislator begins normally by defining a policy which the new law ought to follow. In contrast, our legislation tends to reflect the exercise of power often motivated by party politics. Since, according to the Common Law doctrine, Parliament ought to deal with a specific social evil rather than indulge in purposeful legal engineering, it does not have to proceed from a philosophical starting point. Consequently our laws are tightly drafted and elaborate in detail but silent in matters of principle". That is the introduction, in a sense, to the key parts of the article, which is headed "Subsidiarity and the occupied field". The author goes on to say: Continental codes of law are presumed to have no gaps but life is more inventive than the most far-seeing legislator. New problems are solved by the courts with the aid of general principles and teleological interpretation which enables them to divine the spirit from the letter of the law. However, they are not called upon to interpret or apply the general principles per se in isolation from specific issues. The EEC Treaty is a classic example of the Continental legislative technique". The article now moves to the question of subsidiarity. I shall forbear to go through the whole of the matter, with its references to the activities of the Pope and other historical figures. But it observes that: it seems clear that, given the climate in which it [the Pope's encyclical] was announced, it implies less rather than more power to the higher ranks of authority and no more centralism than is necessary for the well being of society. It re-affirms the basic assumption of the Community, that its powers have derived from the Member States' delegation of sovereignty and have been circumscribed by the Treaties. It cannot he otherwise because, in the Community, power moves upwards from the base rather than downwards from the institutions which, but for the delegation, would be mere intergovernmental organs. However, any acquisition of power by the Community equals a corresponding diminution of sovereignty of the Member States". That is where the doctrine of subsidiarity begins to arise, in trying to mitigate that circumstance. But again, the article goes on to remind us that: as stated by the Court of Justice, where the Community has acted within its competence the Member States must refrain from taking concurrent action … However, until the Community has claimed its competence by using it, the Member States are free to resort to their residual powers … This is the principle of the 'occupied field"'. The main point which is then made further in the article is that: Maastricht, moving towards an economic and monetary union, does extend the Community competence. Therefore, given its historical and philosophical meaning, subsidiarity ought to be understood as a brake on the adventurism of the Community institutions and the ambitions of their bureaucracy, but not an obstacle on the road mapped out by the treaties … The Member States retain their residuary powers, albeit diminished by Maastricht, as well as their responsibilities to carry out their duties in their respective domain … Contrary to wishful thinking, subsidiarity will not disturb or diminish the occupied field but may prevent its extension by the Community assuming that, within the parameters of the Treaties, certain responsibilities are best carried out by the Member States. It cannot be interpreted as a signal to claw back those elements of the national sovereignty which already have been, or will be in the future, given up in accordance with the treaties". I dodged quickly through that article. The Committee will appreciate that it is relatively even-handed. However, the point that it makes overall is that subsidiarity will not and cannot limit the powers of the Community in moving forward into the areas over which it is to be given power. That is to say that subsidiarity will not be an obstacle on the road mapped out by the treaties. Those who fool themselves by believing to the contrary should make a sober reassessment, not least in the light of that article which, as I said, is not written generally from my point of view.

I turn to the amendments. Amendment No. 47 strengthens the role of subsidiarity by removing from the effects of that doctrine those matters which fall within the exclusive or sole competence of Brussels. To put it the other way round: were this amendment to be enacted, the doctrine of subsidiarity would apply across the board, for what it is worth, and not just to those matters where competence is shared.

I do not like the structure of government by Brussels which has given rise to the calls for a doctrine of subsidiarity. I should prefer to reform that very structure of government. There is little doubt that before long it will have to be reformed, not least as a consequence of enlargement. However, we have subsidiarity. The question is: does it amount to a row of beans?

The first limitation is in relation to competence. Until we know which matters fall within sole competence, those in which we share joint competence and those unaffected by Brussels' competence, how can we know whether subsidiarity will in any way be a helpful part of our future life in the Community? We do not know where it will be applied. As the Committee will know, the Government are unable to say which policy areas fall within exclusive or shared competence. Nor is it possible for the Government to say in clear words how such matters will be decided. Can we therefore make any assessment of the value of subsidiarity? We know not to which areas it will be applied, we know not what it is and we know not who will decide where it is applied and to what extent.

I must say that I find the use of the very word "subsidiarity" offensive, since it is based on the assumption that power now belongs to Brussels, that power over important issues will remain in Brussels and that matters of less importance—subsidiary matters—should be delegated to subsidiary authorities. The noble Lord, Lord Bethell, shakes his head. But we all know what happens in the world of business when companies merge. Gradually the old head offices of the individual companies are knocked away as an unproductive overhead and the power flows to the new head office. The subsidiaries of head office have subsidiary powers. The doctrine of subsidiarity is well understood by the noble Lord, Lord Hanson, in his business affairs. I would not wish to be part of a political system in which this kingdom was treated by Brussels in the way in which the noble Lord, Lord Hanson, treats his subsidiary companies down the road.

The Liberal Benches say "Hear, hear". But a company is unlike a nation. Companies do not have the democratic rights that should be accorded to nations. My point is that subsidiarity decides which powers shall be exercised by the subsidiary body. We should begin to get used to the idea that in this context we are not any longer head office. We are the subsidiary.

Even worse, there is dispute over whether the doctrine applies within member states. That matter is dealt with even-handedly in the House of Commons Library Research Paper 93/96 on page 16, which again I commend to the Committee because it is not written particularly from my point of view; it is written entirely without bias. On page 16 we find the question arises of subsidiarity and the regional dimension. I shall not go deeply into that except to say that, while the British Government have insisted that subsidiarity is only relevant 1.0 the question of whether to act at Community or national level, there have been various exchanges in the other place which suggest that views are divided upon that. Indeed, Mr. Charles Kennedy, speaking for the Liberal Benches, made the point that it was his belief that subsidiarity should be applied within this kingdom on the say so and at the diktat of Brussels.

I find that offensive; first, because I do not believe that it is any business of those in Brussels to tell us how we should run our internal affairs, any more than I believe that it is any part of our business to tell our friends in Germany, France or Italy how they should run their affairs; and, secondly, it is clearly in the interests of the European Community's machine, its bureaucrats—its "hangers on", if you wish—that the principle of subsidiarity should be dealt with in that way. So far as I can see, it would not be difficult in future years for it to enforce that.

Those of us who have seen Brussels in action know how it has set out to bypass national governments. It is a controversial matter across the Floor of the Chamber, but it is within the recollection of all Members of the Committee that the Commission sought to apply the doctrine of additionality to the manner in which regional funds were disbursed within the kingdom; that is to say, it is not content that those funds should be transmitted through the British Exchequer to the relevant local authorities. [Interruption]

Lord Tebbit

The noble Lord says, "Quite right too". I think that perhaps I should not have heard what he said because he is outside the Chamber. However, I recollect that that was not his view when he was a Member of the Cabinet in which I served with him.

Whichever view one takes of what should be done, the question is: who should decide? Clearly a European Community of Länder—I do not know how many there would be, perhaps 200—with national governments squeezed out and their powers squeezed away from them, some upward towards Brussels and some down to the regional authorities, would suit Brussels very well. Those who have inhabited the corridors of Brussels will probably have met extremely nice gentlemen who have come to Brussels and explained that they are the Prime Minister of Catalonia or some such place. Again, it is for the Spaniards how they manage their country. But the European institution would welcome talking directly to the Prime Minister of Catalonia regarding its affairs without bothering to go through Madrid on the way.

I see the doctrine of subsidiarity being used in future years to consolidate that process; to eliminate this place from the exchanges between Brussels and Edinburgh, Brussels and Cardiff, Brussels and Belfast or Brussels and—I do not know how many institutions there would be for England but we could have Brussels and Manchester as well as Brussels and London. Surely those who are trying to bring power to themselves—there is no doubt about the direction in which power is moving in the Community; it is moving to the centre and that is what the treaty is about—would like further to speed that process by eliminating the obstacles to that movement. The principal obstacles are the national parliaments. If they can be pushed aside in deals under the heading of "subsidiarity" to regional authorities, then clearly that is in the interests of those who seek to concentrate power in Brussels.

I do not wish to be indelicate in regard to these matters. As the Committee is aware, I am a man of delicate tastes. But while the Prime Minister undoubtedly achieved the removal of the "F" word from the treaty, it has made no more difference to the plot than the removal of the "F" word from Lady Chatterley's Lover would make to that plot. The union would still have been enacted because that is what the plot is about.

We turn therefore to how subsidiarity is to be put into practice. Again, I look to the House of Commons Research Paper on page 18, which is well worth reading. It reads: The essential questions concerning exclusive competence, where and how subsidiarity is applied, have been raised but not yet fully answered. The extent to which the situation will change or has already changed as a result of applying new subsidiarity criteria to EC measures is still unclear, and there is still an inherent reluctance on the part of the EC institutions to alter the present balance of powers in the decision-making process. Although there appears to be agreement among the institutions on an overall approach to subsidiarity, it remains to be seen to what extent the proposed Interinstitutional Agreement will result in changes in decision-making and in the redistribution of competences between the Community and its member states. It is not clear how this will affect areas linked with the internal market which are in the exclusive competence area. Nor is it clear how far subsidiarity can be applied retroactively since there is nothing in the Maastricht: Treaty giving retroactive effect to Article 3b. This raises the question of whether the relegation of EC legislation to the national level would be necessary or desirable. Some have argued that it might undermine the Community's acquis communautaire, and there would inevitably be conflicts of interest between member states and the institutions and between member states themselves which could result in a fragmented á la carte approach to membership of the Community". Your Lordships will have noticed the number of occasions in that paragraph—and it sums up the paper's views—that the words, "It is still unclear", "It is not yet clear" and "It is not clear" occur. It is in that atmosphere of almost total fog on the issue that it is proposed that this Chamber should give its assent to the Bill and that Her Majesty's Government should ratify a treaty the meaning of which it appears nobody understands. There are those who claim to do so, but those who take an independent view come down firmly on the side of saying that it is unclear.

When we are normally considering legislation the charge from independent authorities that it is unclear and that its effects are impossible to gauge would be the kiss of death to that legislation. Yet this legislation rolls on, despite all that lack of clarity. It is part of the Government's case that those matters were resolved by declarations made by heads of government, most notably at Edinburgh and Birmingham. But they may only have compounded the confusion. If we take the Edinburgh presidency conclusions, we must conclude that they neither add to nor subtract from what is in the treaty, nor could they; nor can they have any legal effect. It would be strange if an informal group of Ministers, without recourse to any of their parliaments, could issue binding instructions which in any way altered the meaning of Community treaties. If they could, they would probably issue more binding instructions next week, next month or next year.

We can be absolutely sure that the views expressed by the presidency are merely that and cannot bind the European Court. What is more, nobody can use them against the European Court if that court's decisions appear to fly in the face of the conclusions of those heads of government or presidency since it is forbidden to refer any disputes of interpretation of the Treaty of Rome to any authority other than the Court of Justice. That court alone will interpret the treaty, and I believe that it will interpret it on the basis of what is in the treaty, vague, unclear and ill-drafted as it is.

Where have we got to so far? The Government do not know where subsidiarity applies. They do not have a legally binding definition of it. It is certain that this Parliament will have no say in deciding which matters fall to be governed by subsidiarity. It seems that there is no certainty as to who will decide that matter. I suspect that it will be decided in the Council of Ministers on the advice of the Commission after a political carve-up which may well finish up with an extra 1 billion going in tobacco subsidy to Greece, or something of that kind. The noble Lord, Lord Healey, in his Second Reading speech said that that was exactly how decisions were reached and that it was disgraceful, but he went on to endorse the treaty. That is how we have lived in the Community all these years.

The Commission has decided in particular cases not to issue legislation at present. The Prime Minister made a good deal of this as a benefit of subsidiarity when he returned from Copenhagen. He arranged for a list of those matters to be deposited in the Library. I am not sure how many noble Lords have availed themselves of the opportunity to read it.

The cases where it was decided not to issue legislation on the internal market included the following: foam-filled furniture; travel agencies (the removal of national derogations); and suppliers to ships, aircraft and trains (Community rules on VAT). Those are not absolutely earth-shattering matters. There is quite a large section on transport, in particular in the field of shipping and the protection of coastal cabotage. That was a matter discussed in this Chamber a few nights ago. The Minister did not refer to it. This was an area where most of us believed that there was a case in the interests of the creation of the single market for the Commission to get on with the opening up of cabotage. We now find that one of the successes of subsidiarity is that it will not be opened up.

We have raised the issue of air safety. The noble Lord, Lord Clinton-Davis, will remember this point most clearly. We find that it has now been decided not to issue legislation on various aspects of air safety, on the harmonisation of the rules on training and licensing of flight personnel and so on. That may be right or it may not be, but it seems extraordinary that we should have debated these matters only the other night and the Minister should have decided that this House thought they were of such little moment that they should not even be mentioned even in a ministerial reply.

When I look at the list, the thought in my mind is whether it is subsidiarity that has caused these items to be dropped. The noble Lord, Lord Richard, will recollect from his time as a Commissioner—when I was on the Council of Employment Ministers—that a lot of items were dropped because of inability to reach agreement. Do these matters fall into the same category, now to be cited as proof that the doctrine of subsidiarity is already at work? I should like to see something a little more substantial than that. It is a profoundly unimpressive list.

I believe that the conclusions that I read a few moments ago from the House of Commons Library research paper are the ones that we should accept as being representative of the views of informed and unbiased people on these matters. I would be far harsher in what I said, but I believe that, even if Members took note only of what was in that paper, they would conclude that the doctrine of subsidiarity was flawed and would be unlikely to make any real difference and they should not regard it in any way as a success.

Having said that, for what it is worth I believe it would be helpful to accept the Government's case on subsidiarity for the purpose of this amendment and to ask why, if the Government believe in it, it should not affect all items of business and not merely those in that ill-defined—indeed, undefined—area of shared competence.

6.15 p.m.

Lord Bruce of Donington

From my experience of Parliament in both Houses I am quite convinced that most, if not all, Members, whether they are elected to another place or are here under writ of summons to give their counsel, will do their utmost to preserve and enhance parliamentary democracy in the United Kingdom. Much blood has been spilt in its defence. We have tried to resist every endeavour from outside to impose on us regimes which are completely alien to the results of our experience gained over the centuries. I think that the things which divide us when we come to consider the Maastricht Bill are not all that deep.

Most of us have had experience of how difficult it is for elected Members of another place and for Members of this place to enable their parliamentary will to be translated effectively into legislation and action. This arises because of the ever-increasing complexity of modern life. Elected representatives and governments chosen from them have of necessity to rely upon nominated people—the Civil Service and so on—as the instruments for carrying out the policies that they have been elected to put into operation.

Most of your Lordships who have had experience of another place or have been in government will know that frequently it is very difficult to get one's will translated into action. Often there have been quite justified complaints about the excessive use of regulations by various departments under various items of delegated legislation contained in Bills that are passed. Inevitably, we rely increasingly on the non-elected part of the British Government structure to put into effect those things that we want to do.

I am suggesting to the Committee that this battle still goes on. The matters are so complex and this ever-increasing reliance on the Civil Service is so great that very often Ministers find it difficult to get their will translated into action and, through the sheer pressure of work and the volume of material that is presented to them by their civil servants, they do not always have the fundamental understanding of the legislation they are putting into operation. That very often happens. It is very difficult for people who have ministerial responsibilities, who run great departments and who still have to eat and sleep occasionally to keep abreast of the mass of paper that descends upon them not only from the civil servants in this country but from the various institutions of the Community.

Our anxiety—I speak for myself and, I think, for my colleagues—is that this battle for the will of the politician is very important indeed. Politics is a very reputable profession; it is the determination of policy; it is the parties' and the individuals' belonging to those parties response to what they conceive to be the will of the people. Those of us who look askance, as I do and as many of my colleagues do, at the provisions of the Maastricht Treaty do so because we are very wary indeed lest by default, by lack of vigilance, we allow powers to be given to non-elected bodies of people to bring into European legislation provisions that are automatically incorporated into British law if they are passed.

None of us in this Chamber—certainly none of those who are associated with me in this enterprise —wishes there to be any lack of co-operation with Europe or indeed with any other country. It is not as though the objections or the queries we are raising in relation to Maastricht reflect any desire other than to co-operate as closely as possible with Europe. There is no problem about that. I look back with very great pleasure to my own sojourn with the European Parliament for four years, where I learnt an enormous amount. In particular I learnt how people from the other countries of Europe thought about things—their method of thinking, the motives that inspired them. Indeed, all this was very helpful.

Therefore, we are second to none—I repeat, second to none —in desiring to co-operate to the maximum extent within the control of those entrusted with political power in this country with the rest of Europe. It is just that when things are put into a treaty which was not circulated before the election to the electorate, which some Ministers admit they have not read and on which some Ministers admit they have had to be instructed since it was ratified, we have to be vigilant. I do not like powers being given to other bodies to put things into British law unless I myself have some reasonable understanding of them. One cannot understand everything, but one can try.

When we come to Article 3b, what do we find? With the Committee's leave, I shall read Article 3b because I want to set out the words which are put in the treaty and which designate the method by which powers shall be operated at Community level: The Community shall act within the limits of the powers conferred upon it by this Treaty and of the objectives assigned to it therein. In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity, 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 actions, be better achieved by the Community. Any action by the Community shall not go beyond what is necessary to achieve the objectives of this Treaty". The first thing that anyone with a reasonable mind has to do is to ask himself just what that means. What is the real meaning of that article?

There can be no doubt of the opinion of one eminent European jurist, the noble and learned Lord, Lord Mackenzie-Stuart, who was president of the European Court from 1984 to 1988 and is generally acknowledged an expert on Community law. If you are sitting in judgment with your colleagues on a Bench making decisions of very great importance, often resulting in the movement of quite large sums of money or the giving of powers which were previously not anticipated, you have to be a reasonably competent person. I have yet to learn of anyone who has seriously queried the ability of the noble and. learned Lord, Lord Mackenzie-Stuart, to arrive at sound judgments based on an intimate knowledge or European law into which the treaty and its provisions may ultimately be written.

He said in his letter to The Times on 15th June 1992: May I invite your readers to study the definition of' subsidiarity contained in the treaty? It is too long to quote here, but it is a rich and prime example of gobblecly-gook embracing simultaneously two opposed concepts of subsidiarity. To regard the chosen formula as a constitutional safeguard shows great optimism. Should Maastricht go ahead, the court's task is an unenviable one". I do not say that we should follow that opinion slavishly. I do not say that we should accept it uncritically. But I do think that it is one which any reasonable person in your Lordships' House—as the noble and learned Lord, Lord Hailsham, said the other day, based on the concept of reasonable men —ought to take account of.

Lord Mackay of Ardbrecknish

As the noble Lord has quite rightly explained to us that the noble and learned Lord. Lord Mackenzie-Stuart, is an eminent jurist, and as the noble Lord has just put such store on his words, would he perhaps put equal store on what the noble and learned Lord, Lord Mackenzie-Stuart, subsequently wrote on 4th July? He wrote that he had not intended to suggest that Article 3b deficiencies should deter ratification. That suggests that if the noble Lord is praying in aid the noble and learned Lord, Lord Mackenzie-Stuart, he should be in favour of ratification.

6.30 p.m.

Lord Bruce of Donington

I am not saying, and I did not imply, that the noble and learned Lord was against the treaty and that he was recommending that people should vote against it. I am merely saying that his expressed view is one that should he taken into account. I still hold to that opinion. One of the difficulties that arises from Article 3b that I have just read out to the Committee is that it contains words about exclusive competence.

The noble and learned Lord the Lord Chancellor gave his verdict on that in answer to a Question on 17th June of this year. The noble and learned Lord said, when asked what were the areas of competence within which subsidiarity would not apply: 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".—[Official Report, 17/6/93; col. 1662.] I do not really call that an adequate Answer. I am quite sure that the noble and learned Lord could have gone much further than that. Indeed, he will recall that Mr. Hurd himself went a little further when he said: In some areas, which I could expand on"— and I paused with bated breath because I thought at a later stage he would expand on the matter— the Community has already exclusive jurisdiction on agriculture, trade and the single market". Those are three which Mr. Hurd said he could expand on. I do not really know why he did not because all we really want to know are the defined areas of exclusive competence. I do not think that that would present very much difficulty. In any case the Commission had no particular difficulty because it defines the various areas itself in its communication of 27th October 1992: The removal of barriers to the free movement of goods, persons, services and capital. The common commercial policy which guarantees the unity of the internal market. The general rules on competition. The common organisation of agricultural markets. The conservation of fisheries resources and the essential elements of transport policy". Therefore we begin to know what is the area. We also know that under the Maastricht Treaty additional competences were taken but not exclusively. But nobody has really explained why the competences of the Community should be increased to cover such a wide area as has now been accomplished under the Maastricht Treaty. We have citizenship of the union; economic and monetary policy; education; culture; public health; the trans-European network; industry; development co-operation and consumer protection. Those have now been brought into the Treaty of Rome in addition to those which were there before the Maastricht Treaty came to be negotiated. Those are all additional since the Single European Act. There have yet to be convincing explanations as to why those matters should be brought in.

Baroness Elles

I am grateful to the noble Lord for allowing me to intervene. Does he agree with me that many of the new areas of competence which have been put into the Maastricht Treaty are precisely to defend the principle of subsidiarity and that many of them had originally been dealt with in the Community by Articles 100 and 235 although they have not had proper scrutiny? However, now that they are in the treaty, they can at least be justiciable by the European Court of Justice. The noble Lord knows as well as I do that in some of the articles the words refer to contributing to policies and they are not exclusive.

Lord Bruce of Donington

I agree that none of them is exclusive. I thought I had made that quite clear. But they are additional competences, some parts of which are to be designated and, presumably, they are known to the Government. They can be termed to be exclusive.

Lord Tebbit

The noble Lord misses an important point. It is only three years to the next intergovernmental conference. On the form which has been established so far in the debates on the treaty in this House, if the noble Lord were to object to the items which have been introduced with shared competence becoming exclusive competence, I am quite sure that many noble Lords would say to him: "Didn't you know that that was the intention when we brought them in in the Maastricht Treaty? You should have been awake to that because that is the theme all the way through".

Lord Bruce of Donington

I am very glad that the noble Lord has amplified and clarified the observations which I have ventured to make to the Committee on the subject. All these issues were brought into the Edinburgh conference, which lasted for two days in December 1992. I do not know how many hours Ministers spent during those two days working on these matters. I do not know whether they followed an eight-, 10-, or 12-hour day. But certainly they deliberated on the matter. They came up with little that was new.

However, the Commission provided another memorandum on its general approach to the application of subsidiarity, which was Annex I to Part II of the Edinburgh conference announcement. It took me some time to go through it. I marvelled at how the 12 members at the conference managed to read the document before it was annexed to the communique. Apart from having taken part in the discussions themselves —which, on the basis of a 12-hour day would allow each of the 12 Ministers approximately two minutes each on each of the principal subjects —I do not know whether they ever saw this communiqué.

However, in case they did not or they may not have read it since, perhaps I may acquaint the Committee with some of the observations made by the Commission on the exercise of its powers. That is vital for a proper understanding of the whole matter. The Commission indicates: The following guidelines should be used in examining whether the above-mentioned condition is fulfilled". This is referring to the subsidiarity question. The quotation continues: the issue under consideration has transnational aspects which cannot be satisfactorily regulated by action by Member States". A purely innocent question arises from that: who decides what is satisfactory? Is it left in a vacuum? Does the Council of Ministers decide? Does the Commission decide? Who decides what is satisfactory?

We are all right with the next part because the document then states: the Council must be satisfied that action at Community level would produce clear benefits by reason of its scale or effects". That is all right because the Council has a specific responsibility on that one.

The next paragraph states: The Community should only take action involving harmonisation of national legislation, norms or standards where this is necessary to achieve the objectives of the Treaty". Who determines that it is necessary for the purposes of the treaty? The document does not state that the Council shall reach the decision or that the Commission shall reach the decision.

Another question then arises from a following paragraph which states: The reasons for concluding that a Community objective cannot be sufficiently achieved by the Member States but can be better achieved by the Community must be substantiated by qualitative or, wherever possible, quantitative indicators". But who decides whether the objective can be better achieved? Is it the Council of Ministers—if so, that is not stated—or is it the Commission?

I must draw a whole series of criteria to the Committee's attention otherwise one assumes that everything will happen automatically or in an excess or flush of goodwill or by a general expression of sentiment or something of that kind. The document then discusses the nature and extent of Community action within the subsidiarity concept, stating: Any burdens, whether financial or administrative, falling upon the Community, national governments, local authorities, economic operators and citizens, should be minimised and should be proportionate to the objective to be achieved". Who determines what is proportionate? It will not be the Council. The Council is probably unaware of it anyway. Members of the Council do not have the time, and will probably have read the papers only on the aircraft. What does the Council know about it? Very little. In short, once again it will be the Commission who decides.

The document then states: Community measures should leave as much scope for national decision as possible, consistent with securing the aim of the measure and observing the requirements of the Treaty". Who determines the nature and extent of the national decision or the scope for national decision? I repeat that the paragraph states: as much scope for national decision as possible". But who determines what is possible or desirable? Is it the Council of Ministers or, once again, is it the Commission? The other reason for determining the nature and extent of Community action is stated as being: Where it is necessary to set standards at Community level, consideration should be given to setting minimum standards". Who decides when it is necessary?

I could go on like this reading from the document that was issued following the meeting in Edinburgh at the end of December, but I shall not do so. I am, I think, showing the utmost consideration in refraining from pressing the point further. However, I hope that I have quoted sufficiently from the document, which I commend to the Committee. It is in the Library and those of us who consider ourselves to he eligible for consideration as guardians of the liberty of the individual and of parliamentary freedom might even consider it wise to read it. I am not trying in any way to suggest that everything that the Community has done is wrong. No, many beneficial things have been done. All that I am venturing to put to the Committee is that we should be very careful about this, particularly in view of the relative powers of the institutions which Maastricht is sworn to defend to the utmost.

I believe that the noble Lord, the Chairman of Subcommittee A of the Select Committee on the European Communities will recollect me questioning Mr. Lilley on the limitation of the powers of the Council. I put it to Mr. Lilley—this is all on the record and I can produce it if necessary—that the Council itself could not act save on a proposal from the Commission. I was somewhat surprised when he said that that was perfectly true. This is all on the record. Anybody who reads the Maastricht Treaty will find endlessly repeated, "The Council is acting on a proposal from the Commission". That happens in practically everything. Mr. Lilley also vouchsafed the information that when the Council wanted to change its mind, having had experience of a regulation for some months, it could do so only with the consent of the Commission. In short, even when there was complete unanimity in the Council of Ministers that its members wanted to repeal a regulation in the light of experience, the Commission could veto it.

Anxious to be helpful in these matters, I thought. that I could find a way round this that would enable the Council to be a little more free. I said to myself, "What is to stop members of the Council of Ministers from making unofficial approaches, behind the counter, and saying, 'We should like to put a proposal to you, are you prepared?' and, 'We should like you to make a proposal to us, will you do it?"' I thought that that would get round the difficulty, but no.

Annexed to the Edinburgh declaration—somewhat impertinently, I thought, as the declaration was supposed to be made by the Council of Ministers and governments—the Commission managed to insert the following on its own initiative. I do not know how it got passed, save on the basis that, in the same way as many members of the Council had never read the Maastricht Treaty, some of them probably never read the presidential declaration that was issued after Edinburgh. The Commission's annex states: In more general terms the Commission is intending to use its monopoly of the right of initiative by declining to accept requests made by the Council at informal meetings that it makes proposals for Directives. In the same spirit it will be tougher about rejecting amendments proposed by the Council and Parliament that run counter to the proportionality rule or would unnecessarily complicate Directives or Recommendations that are in fact justified under the need-for-action criterion". In other words, members of the Council are told by the Commission, "You do what you are told to do by us, and do it in the way that we demand that you should do it".

Surely that is not consistent with the British idea of parliamentary democracy. I think it a gross impertinence that an unelected body of people, composed largely of ex-politicians from the various countries, assembled together with very expensive directorates and other paraphernalia and entitled to remunerations at a higher level than most of the Prime Ministers of their various countries, should presume to dictate what the Council should do. That lies at the root of our anxieties about the whole of the Maastricht Treaty. It is that in allowing, or agreeing, that the provisions of the Maastricht Treaty which would enable regulations to be written into British law should be regarded with the utmost care by us, all that we are doing on this side of the Chamber is nothing more than our duty, to which we trust that Members of the Committee will subscribe, of ensuring that the role of the politician —it is no mean profession—shall prevail over the attempted rule by non-elected bureaucrats, or by those who are not subject to the will of the people.

Lord Slynn of Hadley

I am in entire agreement with the noble Lord, Lord Bruce of Donington, as to the legal standing and abilities of my noble and learned friend Lord Mackenzie-Stuart. However, the fact that I hold him in such high respect does not mean that I have to agree with him on everything, or he with me. Having worked together for 11 years, neither of us would expect that. I should like to say a word about Amendment No. 47 which seeks to delete from the provision the words: In areas which do not fall within its exclusive competence". As I understand it, the fear is that leaving those words in would in some way reduce the effectiveness of the subsidiarity principle. In my view, read in their context, that is not the position.

The noble Lord, Lord Bruce of Donington, has just read Article 3b. I shall not read it again. It is plain that the first sentence of that article attributes powers, and underlines that the Community only has powers conferred upon it by the treaty. That is a strong and an important statement. It then goes on to say: In areas which do not fall within its exclusive competence, the Community shall take action, in accordance with the principle of subsidiarity". Of course, it will be a question from time to time in the future as to whether it is appropriate for the Community or for the member states to take a particular action—action in a wide area, including, as the noble Baroness, Lady Elles, said, many of the things that will be introduced into the treaty, if it is ratified, by the Maastricht agreement.

The third sentence provides that the principle of proportionality shall apply. Action is to be taken only where it is necessary to achieve the objectives of the treaty. Against that background, it is inevitable that the words: In areas which do not fall within its exclusive competence", should be included. I envisage those words as covering three matters: matters where competence has, by the member states, been transferred completely to the Community. There have until now been few such examples. The most obvious ones are the common commercial policy and the protection of fishery resources. Those are matters where the member states have accepted that only the Community has competence. The principle of subsidiarity does not have a role to play in those areas.

The second area is where the treaty itself has specified not just the objectives to be attained by the Community but the means which are to be used. The principle of subsidiarity cannot apply where those means are available to the Community only. The best example I can give is that of the CAP where Article 40 of the treaty provides that the objectives of Article 39 are to be attained by establishing a common organisation of agricultural markets, something which, by definition, individual member states are not able to initiate.

The third example is where the treaty imposes upon the Community a duty to achieve a specific objective. Article 8a (the internal market) is an example of that. So it is, to me, clear that in those areas the principle of subsidiarity does not apply, and so the words which it is sought to delete need to be in Article 3b.

I am well aware that Members of the Committee feel some anxiety whether the principle of subsidiarity will ever be justiciable. It seems to me, as an innocent in the political world, that it is likely that all decisions on subsidiarity will be taken by the Community's political institutions. I envisage that the Court of Justice will be reluctant to substitute its judgment for those of the political institutions on what is, essentially, a political matter. There may occasionally be a question of interpretation. There may occasionally be a question of proportionality. I hope that Members of the Committee will not fear too greatly that what was called the ceaseless imperialism of the European Court of Justice—a phrase which I regard as inapt in all the circumstances—will play its part here. For those reasons, I oppose Amendment No. 47.

Lord Swinfen

I wonder whether my noble and learned friend can answer two questions, and two questions only. First, does Brussels and no one else, decide when subsidiarity applies? Having decided that it does apply, does that area remain for ever in the competence of Brussels? If the answer to both those questions is in the affirmative, it would seem to me that we have a creeping European sovereignty of which the Government may be unaware, as they have frequently said that sovereignty is not passing to Europe. It strikes me that they are as unaware of the creeping sovereignty that is occurring today as they were at the time when dry rot was discovered in the ceiling of this Chamber, and we nearly had a major disaster when one of the bosses fell from the ceiling while this place was in session. If Lord Shinwell had been in his seat on that occasion, he would not have made a century.

Lord Slynn of Hadley

It seems to me clear that if the Council, or whichever political institution in the Community is appropriate—as I see it, the Council —takes a decision that something is within Community competence, it will rest with Brussels, subject to particular matters being attributed to the member states, in accordance with the principle of subsidiarity. The noble Lord need have no fear that it is for the European Court to increase the sovereignty of the Community or to detract from the sovereignty of member states where under the treaty the member states have not already done so.

7 p.m.

Lord Swinfen

I should have made it clear that I was addressing my questions to my noble and learned friend on the Front Bench.

Lord Slynn of Hadley

In that case, I withdraw everything that I said and leave it to my noble and learned friend the Lord Chancellor.

Lord Hacking

In this my first intervention in the Committee I am delighted to follow the noble and learned Lord in the remarks that he addressed to your Lordships.

It has been something of a self-denying ordinance to sit through three long—and interesting—days of Committee and not to intervene. The last moment of that self-denying ordinance was during the speech of the noble Lord, Lord Bruce of Donington. Roughly 10 minutes before the end of his peroration to us, when he was addressing us about the virtues of the Community, I was tempted to rise to my feet to ask him to extend his peroration about those virtues but I resisted that temptation.

The noble Lord, Lord Bruce of Donington, and my noble friend Lord Tebbit have criticised the conceptual approach contained in instruments of the Community, and, in particular, the conceptual approach which is contained in this treaty. For example, the noble Lord, Lord Tebbit, earlier in our Committee deliberations took to task the words "trans-European networks". In other lucid interventions he has taken to task other phrases in the treaty which are based upon a conceptual approach. So it is that he has taken to task the principle of subsidiarity in our present debate.

The conceptual approach to the making of law may be alien to our current statutory law but it is not alien to the making of the law of England. The English common law is based upon a conceptual approach. The laws of negligence, duty of care and so on have evolved from a number of cases and from the concept of rights.

One could go even further back to biblical instruction. I do not know which of the Ten Commandments Members of the Committee would wish to be addressed upon, but perhaps I may choose quite safely, "Thou shalt not steal". That is a concept which is readily and easily understandable. It was certainly understandable during my days at the Bar when I had clients like the noble Lord, Lord Williams. When my clients were faced with the Larceny Act 1916 or the Theft Act 1968, I confess that the clear concept involved in the words, "Thou shalt not steal", was not conveyed into the complexity of those two statutes.

We should look, should we not, through the other side of the mirror? Some of us—and I am sorry that my noble friend Lord Renton is no longer in his place —are not happy about the complexity and length of our statutory law. This Chamber goes through Committee, again in Report and again in Third Reading stages deciphering the words of our statutes. But that is not the end of the matter. I and Members of the House who are in professional practice then have to decipher —sometimes with uncertainty—the words of statutes when we are practising the law and advising our clients about the meaning of our statutory law.

I do not know whether my noble friend Lord Tebbit knows this, but recently in this Chamber I gave a helping hand to him and his fellow members of the board of British Telecom plc. I am always delighted to give my noble friend a helping hand. I gave him that helping hand when we discussed the procurement directive. It is interesting that it was not the procurement directive which troubled my noble friend Lord Tebbit and members of his board nor the concepts set out in the recitals of that directive but it was the statutory instrument—the Utilities Supply and Works Contract Regulations 1992--which caused the problem. It was our enactment of the EC instrument which caused the difficulty.

Lord Tebbit

I am grateful to my noble friend for the clarity with which he speaks and for the help that he has given to British Telecom plc. Is he saying that the concept of subsidiarity is crystal clear in this Bill and in this treaty and that it will become fouled up only if anyone tries to define it in law?

Lord Hacking

As I said, I do not believe that any Member of the Committee —and in that I include my noble friend Lord Tebbit—finds it difficult to understand what is the concept of subsidiarity. I am happy to leave the application of that principle to be enacted or followed, as the noble and learned Lord, Lord Slynn, said, by national governments having a political sense of what is possible or, as a matter of last resort, by the European Court.

There is one statute called the Occupiers' Liability Act 1957 which sets out in simple terms the principles on which the occupier of a premises shall be held liable. That is a rare example in our statutory law where we are led to what our law is not by complex legislation dealing with every point but by the simple setting out of principles. That is how I see subsidiarity. It will evolve in time in a way which will keep within the concept of that principle.

Lord Harmar-Nicholls

May I ask my noble friend—

Lord Hacking

I shall not give way and in particular I shall not give way to a Member of the Committee who does not rise to his feet. In my submission to the Committee the inclusion of the principle of subsidiarity in the treaty goes greatly to the credit of the Prime Minister and the British Government, who negotiated the treaty. It is a valuable part of the treaty and I find it very difficult to understand how Members of the Committee who are opposed to increasing centralisation and who see Brussels as a bureaucratic power spreading its fingers right into our national lives can wish to exclude that clause from the treaty.

Lord Clinton-Davis

This has been an extremely interesting debate. It is right that this difficult concept —because it is difficult—should be considered in the depth in which the Committee has undertaken that consideration. Indeed, we tabled our amendment, which we do not propose to move, in order to ensure that there is a proper debate on the matter.

There have been some strange notions advanced during the course of the debate. For example, it has been suggested by the noble Lord, Lord Pearson, and supported in part by the noble Lord, Lord Tebbit, that the role of the member state almost becomes redundant. The noble Lord, Lord Tebbit, said that power will reside with or belong in Brussels. The fact is that member states have control over their individual domestic policies and legal systems. It is only in relation to policies which are specified as common policies that the Community's decisions take priority over national law.

There are limitations imposed on what was once absolute sovereignty, but those have arisen due to unanimous decisions by member states and only for that reason. Therefore, no member state can complain that a common policy was imposed against its will. As regards new member states, they accept the full acquis politique as a precondition for membership. Therefore, common policies exist where there is unanimous consent. In those circumstances, I find it very difficult to follow what the noble Lord, Lord Pearson, was arguing about.

It is clearly in the interests of the Community and its citizens that decisions affecting the Community should be made at the level best understood by people living in the Community. There is nothing new about that. As the noble and learned Lord, Lord Slynn, argued—and I agree entirely with his argument—it is essentially a political rather than a legal concept. Indeed, it is a practice that has gone on since the European Community was established, in that the Community's competences are reasonably well defined and, generally speaking, quite modest.

However, having said that, I think it would be wrong to suggest that the enshrining of the doctrine in Article 3b is capable of any easy interpretation; nor is it other than facile to say that, at the end of the day, it will all be interpreted by the European Court of Justice and that all will be well as a result—suggesting, therefore, that the interpretation is justiciable rather than a political issue. Of course, there are different legal opinions in that respect, but I prefer the opinion just expressed in this Chamber, which has also been expressed by Commissioner Sir Leon Brittan.

Frankly, I do not think that it is quite so easy to compartmentalise the resolution of conflicts which are bound to arise in the sort of simple and convenient way that the Government have (at least, in many of the discussions which have taken place) suggested. Some have argued—and I believe that there is a good deal of force in the argument —that, therefore, subsidiarity should be determined on a case-by-case basis. I believe that that was the point of view expressed by President Mitterrand.

I should have thought that very few people would have disputed the desirability of taking decisions at the lowest appropriate level. That is clearly the best way of associating ordinary people with the decisions that are taken. That point was made by the noble Lord, Lord Hacking. But the lowest appropriate level does not necessarily mean at the level of the member state. One cannot help but feel that that is the position that seems to have been adopted by the British Government. I believe that, to carry credibility in adopting the principle of subsidiarity, one needs in certain circumstances to carry its implementation to lower levels of government, involving, therefore, far less centralisation of decision-making power than occurs in this country as a result of deliberate policies that have been applied on the part of the Conservative Government over the past 14 years.

You cannot have your cake and eat it as the Government seem to suppose. Subsidiarity means taking decisions at the lowest appropriate level. Consequently, in my submission, one cannot establish a presumption in favour of decision-making being taken primarily at national level or even—as some would say, at worst—at European Community level. Therefore, the situation of the regions and of local authorities is very important in that context.

I do not propose any more than the noble Lord, Lord Tebbit, to examine the teleological origins of the concept, nor its applicability to the federal structure of the German Republic. However, what I believe to be significant is its meaning and how it is likely to be applied in the context of the Community. In the framework of Maastricht it is certainly not new; indeed, it was explicitly referred to in the Tindemans Report on European union back in 1976. It was used by Altiero Spinelli, a very great European, who defined it as: The Union acting only for effecting tasks which may be undertaken in common in a more efficient way than if Member States were to act separately". That is to say, the concept defined in this way is designed to promote the efficiency and democracy of the European Community. It is a very different interpretation of the concept to the one that I believe the Government have promoted. Therefore, in that sense, the idea was promoted into the draft treaty establishing the European union in 1984 and then specifically into the Single European Act in Article 130R, dealing with the new environment chapter. As the Commissioner responsible for that area of policy, naturally I recall the discussions that took place on that particular topic.

In passing, I am bound to say that it does not seem to me that Article 130R has given rise to any problems. It has been followed very substantially by the Commission; member states have certainly taken it very strongly into account in their deliberations about new environment policy since 1987; and, indeed, it does not seem to have given rise to any of the problems about which we have heard during the course of the debate.

Another important fact that is missed when listening to the presentation by the Government of the peculiar national advantages of subsidiarity is that the main proponents of the principle were the Commission and M. Delors. I have already referred to the 1984 proposal. Of course, the noble Lord, Lord Cockfield, will remember the discussions that we had within the Commission which dealt with the issue in the context of the Single European Act 1986.

Of course, the debate at the inter-governmental conference has associated subsidiarity with debates about other concepts—for example, cohesion, sovereignty and the efficient running of the Community. But what has not been resolved thus far —and we are told with supreme optimism by the Government that all will be well at the end of the year —is anything like a true definition so that the word can he put clearly into the framework of future policy making. Such a definition is very elusive. In my view, it would be counter-productive to take it beyond a fairly general concept. In that regard, I agree with the noble Lord, Lord Hacking. Moreover, as I have said before, I do agree with those who contend that it is not a legal or a constitutional concept; it is essentially a political one.

There can be no absolute distinction between what can be better achieved at Community rather than at national level. There are bound to be difficulties and areas of conflict in that regard. However, it is of major interest in its application to the German Federal Republic, where the Länder have been at pains to defend their legal powers under the constitution. Incidentally, that seems to me to be a factor which makes it virtually impossible to establish the sort of spectre of a supra-national government established in Brussels that has been so widely canvassed by some Euro-sceptics in this Chamber and elsewhere.

I should like to take up a point raised by the noble Lord, Lord Tebbit, about the difficulties facing the Commission in dealing with the Länder. There are no difficulties confronting the Commission in its dealings with the Länder. the Prime Minister of Catalonia or whatever. Of course the Commission may well see the Prime Minister of Catalonia, or representatives of the Länder just as it sees representatives of the various umbrella organisations, of business or of trade unions from time to time; but its dealings are with the member state. It is extraordinary that the noble Lord, Lord Tebbit, should not, with all his experience, have understood that precise point. The noble Lord shakes his head, but I do not understand why.

The noble and learned Lord, Lord Slynn, dealt effectively with the arguments affecting Article 3b and the points about the common policies. Therefore, I do not think that I need to speak further in that regard. All they are are general guidelines. There is nothing immutable about them. Of course, flexibility will demand change consonant with the development of the Community over the years ahead. Therefore, in my submission, it comes to the fact that the European Community does not need in law to apply the doctrine in those areas which fall within its exclusive competence. However, what it may be wise to do—indeed, what I think it would be wise to do—is to take political account of the doctrine of subsidiarity even in those areas. So far as concerns areas of shared competence, there would be an onus on the Community to establish justification for action at Community level in preference to action at the other possible levels.

In those respects, the Commission has made it plain that it prefers methods that are less detailed and restrictive rather than to go for regulations and mutual recognition measures, and so on. The Commission set out clearly the guidelines that it suggests should be followed in dealing with cases arising in areas of shared competence. I cannot see anything wrong in that. That is all it did, although my noble friend Lord Bruce seemed to think there was something very sinister about it.

The Commission has always recognised that there is a "lack of precision" in trying to assess the need for action. It has proposed an inter-institutional agreement whereunder the subsidiarity exercise would have to satisfy certain imperatives. It includes more effective action at European level (summarised as "do less but do it better"); an assurance that the Commission has no intention of adopting a dominating situation; and the translation of good intentions into binding commitments and so forth. Therefore, subsidiarity is not a precondition for decision-making; it is an essential ingredient of it at a political level.

The Government appear to believe that subsidiarity implies that legislative initiatives from the Commission are to be based on something like a de minimis principle. That is plainly wrong. That was their argument before the Edinburgh Summit and happily they seem in part to have departed from it. The dangers of going ahead with subsidiarity in that kind of style would be to lead towards a destabilisation of the internal market if subsidiarity were to diminish European Community actions and replace them with national actions, particularly in fields affecting the internal market or in many areas affecting environmental and social policies.

There would be another danger in reducing the impact of desirable cross-frontier environmental legislation. At one stage the Government appeared to be demanding the repatriation of environmental legislation. Happily that has not occurred, although there are written into the Maastricht Treaty various areas in which it would not be appropriate for the Community to take action in the environmental field. And producing conflict with the competition articles of the treaty, which are designed to eradicate undesirable commercial practices arid to establish a level playing field, is an area in which we must proceed with great caution as regards the doctrine of subsidiarity.

Finally, I turn to the European Court of Justice, which will be dealt with in more detail in another debate. I agree with the noble and learned Lord, Lord Slynn, that it is difficult to conceive of the court adjudicating essentially on political issues. How could the court determine whether it is more efficacious to take action at Community or some lower level? It would be a matter of political judgment. Therefore, it would scarcely be within the proper functioning of the court to do that. But there is an argument that has been used—it was referred to in the document cited by the noble Lord, Lord Tebbit—by Mr. Jeremy Lever QC. He argued that there might be a development of something comparable to judicial review; that is, applying subsidiarity only where the Community institutions have been guilty of manifest error or the misuse of powers or have otherwise misdirected themselves. In other words, the court's judgment would riot be substituted for that of the institutions but would simply undertake the traditional role of judicial review of the judgment of a non-judicial body. That is one possible choice which Mr. Jeremy Lever has argued might be taken. The alternative choice is to risk the politicisation of the court and to take up a substantive position of the court itself in the vested areas of state rights. That would be an extremely dangerous situation.

In summary, I believe that the doctrine of subsidiarity must be viewed as conceptual. It is essentially one which is not justiciable but, as the noble and learned Lord, Lord Slynn, said, there may be areas in which the court may have to intervene. I would regard those as probably the minority of cases. That is the view that we would advance in respect of this most interesting debate.

The Lord Chancellor: Perhaps it would be convenient if I were to state as briefly as possible the position as I see it in relation to the amendment. It seeks to delete a sentence from what I shall continue to call the central paragraph of Article 3b. Although I agree that it is a sentence, the sentences are separated by what I normally regard as a paragraph delineation and therefore I shall continue to call it "the second paragraph". The deletion proposed is:

In areas which do not fall within its exclusive competence". Perhaps I may begin by saying to the noble Lord, Lord Jay, that when I said that he had not read the whole of Article 3b I was not suggesting that he had not read it during the course of his study of this important problem. I was stating that he had not read it during the course of his exposition to us of the effects of the principle.

When I spoke on Second Reading I was talking in relation to Article 3b generally. I was seeking to point out that in his argument the noble Lord, Lord Jay, had not taken account of the last paragraph of Article 3b. I consider that article to be important. Before dealing with that I wish to comment on the general scheme of things into which Article 3b is going.

First, if the Maastricht Treaty is ratified Article 3b will be incorporated as a term of the Treaty of Rome as amended. Therefore, it has legal effect as a binding term of the treaty. I do not believe that anything which my noble and learned friend Lord Slynn said sought to contradict that. This is the first time that this has been done in a general way. The noble Lord, Lord Clinton-Davis, referred to Article 130R on the environment. That contains provisions which are to much the same effect but in relation only to the environment. This is a general provision.

Secondly, the whole structure of the treaties establishing the European Community and the other treaties is that the member states remain with all the powers that they had previously subject only to what has been transferred. The residue of powers remains with the member states. Therefore, before the Community can act in any matter it must be able to show that there is a power conferred upon the Community by the treaties. That is what is being emphasised in the first paragraph of Article 3b.

Some Members of the Committee appeared to say that that was obvious. It is not all that obvious and it is extremely important that it should be set out at the very forefront of this article. When powers are granted by the treaty to the Community those powers may be granted either on the basis that the Community alone will exercise them or on the basis that both the member states and the Community may exercise such powers. If the powers have been given to the Community on the basis that the Community alone will exercise the powers there is no point in the question of whether the member states can act in that matter because by agreement between the member states it has been decided that they cannot act. There is reference in the second paragraph to exclusive competence. "Exclusive competence" means that the member states have granted to the Community, and to the Community alone, the power to act in the area in question.

Where that has not been given and the member states retain a power to act alongside the Community the second paragraph comes into play. It states that: the Community shall take action … 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". I suggest to the Committee that those words are plain. I do not see any particular difficulty in any of those words. While I share the great respect of my noble and learned friend Lord Slynn for the noble and learned Lord, Lord Mackenzie-Stuart, who was a colleague of mine at the Bar in Scotland for many years before he attained the eminence of the Court of Justice, I cannot accept his view of this article. If necessary, I am prepared to take issue with him upon the analysis which his letter gives as the basis for his view. I notice that the letter referring to gobbledegook originated in France. When he moved to his home in Edinburgh, I think that he found that matters became clearer. The cold air of the North sometimes has that effect.

The second paragraph is intended to give a criterion for deciding when a member state or the Community should take action when both of them can act in the area in question.

7.30 p.m.

Lord Jay

Perhaps I may ask the noble and learned Lord a question. It is clear that he agrees that the words in paragraph 2 relating to the principle of subsidiarity do not apply to areas which are within the exclusive competence of the Community. That is what I said, and I gather that he agrees.

The Lord Chancellor

It is a question of precisely what is meant by the principle and whether one uses it to describe the whole of the article or only this part. In so far as the noble Lord, Lord Jay, refers to the principle of subsidiarity as relating only to the second paragraph then I agree. There can be no question of allocation between a member state and the Community in a case where the member states have already agreed by treaty that only the Community can act. Therefore, the qualification is necessary and proper, but it is self-evident that such a qualification is required once one accepts that in the treaty there are areas of exclusive competence, as undoubtedly there are.

The point that I want to make, and the point that I made in answer to the noble Lord, Lord Jay, at Second Reading, is that the third paragraph of Article 3b applies to any action by the Community. It applies whether or not the Community is acting within an area of exclusive competence or outside it. In that regard it states that any action by the Community, whether inside or outside that area, shall not go beyond what is necessary to achieve the objectives of the treaty.

I agree that if the Maastricht Treaty is ratified the whole of this matter is before the political institutions of the Community, the member states, the Ministers in the Council of Europe, the Commission and all others concerned. If that ratification takes place it also forms part of the treaty agreements between the member states. Therefore it falls to the Court of Justice to ensure that the law is carried out.

Of course I agree that when words such as "necessary" are used it is a matter of judgment as to what is necessary. However, that does not make the provision any less effective in law. Many of our legal provisions—and perhaps I may refer to Professor Lasok's article about our detailed legislation—contain references, for example, to "reasonable time". What exactly is a reasonable time is a matter to be determined in the light of all the circumstances. What is necessary to achieve the objectives of the treaty will have to be decided in a similar way.

It seems to me that this amendment has no real foundation.

Lord Stoddart of Swindon

I am most obliged to the noble and learned Lord the Lord Chancellor. What he has just proposed is the 64,000 dollar question. The important part of Article 3b is paragraph 3 because he has just told us—and perhaps he will correct me if I am wrong—that in the last analysis what will be considered correct under Article 3b is not what the United Kingdom feels is correct but what the Commission and the court feel is correct. It is they who will decide; what actions it is necessary for the Community to exercise at Community level irrespective of what national governments may say. Because much of the treaty is concerned with qualified majority voting, it could very well be that the United Kingdom could be outvoted by the other members on what it feels should be a subsidiary matter.

The Lord Chancellor

The position is this. Assuming that the Maastricht Treaty is ratified, it becomes the law of the Community and is therefore binding on all the Community institutions. Of course member states will have a view as to whether action is necessary to achieve the objectives of the treaty in respect of a particular action. It will be for the member state to decide how the matter stands. If the member state were to be outvoted on any matter in the Community, it will have the ultimate sanction of the Court of Justice. It will not be the Commission which decides a matter finally. Community action in this respect will be a matter ultimately for the Council. As the noble Lord, Lord Stoddart, said, there are provisions for qualified majority voting. There is a doctrine called the Luxembourg Accords which is unaffected by the treaty. However, if one considers the matter from the purely legal point of view, on the basis of the treaty the situation is that a member state could adhere to its view and, if necessary, have that view tested in the Court of Justice.

There is nothing new about that. Often a question may arise about the legality of a Community Act. In a recent example the United Kingdom declared that it will challenge the legality of a particular Community Act.

Lord Stoddart of Swindon

Perhaps I may ask the noble and learned Lord one further question. He has confirmed my view of the situation, arid the view of many others; that in the last analysis it will be the court which will decide a matter. However, is he saying that despite that fact the Luxembourg compromise could still be applied? Despite a court ruling could the Luxembourg Accords still be applied and the law as agreed by the court set aside so far as concerns the United Kingdom?

The Lord Chancellor

My understanding of the Luxembourg Accords is that they would operate when the question arose as to whether the Act should be passed at all and whether the Council should make the Act in question. If, as a result of the Luxembourg accords, the Act is not made at all then no question would arise for the court. The court would be brought in only if the Act became a legislative Act of the, Community and a question was raised about its propriety having regard to paragraph 3 of Article 3b.

Some of my noble friends have asked for lists of areas of exclusive competence. The proper answer is that in order to find out one reads the treaties as amended. I agree with what my noble and learned friend Lord Slynn said about those. The idea of a list is a very strange one in this situation. For example, one of the areas of common policy which would lead to the possibility of exclusive competence in the Community is the common agricultural policy. However, within agriculture there are a number of areas in which member states retain the right to act. Therefore, a simplistic list such as is suggested would be misleading unless it were so elaborate and so long as to bore the reader before he got halfway through it.

I see this matter operating in this way. Someone will propose a legislative Act. Having a proposal, the question is: what is the power from which that proposal derives? Is it a power granted to the Community alone or is it a power which the member states could also operate? If it is the latter, you apply the second paragraph; and in any event you apply the third paragraph.

That is a simple application of this system to a specific legislative Act. The idea that one carries about in one's pocket a great list of very difficult to define areas strikes me as somewhat impractical.

Lord Bruce of Donington

I am obliged to the noble and learned Lord for giving way. He will recall that annexed to the original Treaty of Rome was a series of schedules of great detail defining matters of customs and quotas. What makes the noble and learned Lord think that a comprehensive list attached to Maastricht will be any less interesting than the mass of schedules attached to the Treaty of Rome?

The Lord Chancellor

The short answer to that is that there is no such list attached to Maastricht. I am talking about the suggestion that someone else should create a list. I state that the authoritative list is reached by a construction of the treaty documents—that is to say, the original Treaty of Rome as amended by the Single European Act, and, if ratified, by the Treaty of Maastricht.

Lord Tebbit

I understand, of course, what my noble and learned friend says. However, does he not understand the anxiety, not merely within this House but in the broader community outside, over his comment that it is just not possible to say where the Community's competence lies in these matters? He must understand that not everyone, not even Ministers, will read the treaty in great detail to discover which items are or are not within exclusive competence and therefore affected by subsidiarity. Yet it is a matter which must make a difference to one's attitude towards the treaty.

The Lord Chancellor

Obviously if someone wishes to attempt a list, I should be happy to comment on it. However, the idea of a simple list of a common agricultural policy, a common commercial policy, and so on. would be misleading because within areas which ordinary people might regard as coming within the common agricultural policy there is a great deal over which the member states have retained competence. I am not at all objecting to explaining the matter as fully as I can in relation to any area about which the noble Lord likes to ask me. However, the idea that one can achieve that satisfactorily by a list such as the noble Lord has in mind does not seem to me to be practical.

My noble friend Lord Swinfen asked me about creeping competence. (I believe that that was his phrase.) He asked whether that was in the control of Brussels. I wish to emphasise, because it is extremely important, that competence is granted to the Community by a treaty or treaty amendment. In no other way can competence be conferred. Therefore the answer to his question is this. At any particular stage one considers the treaties. They define the areas of competence and, of course, also the areas of exclusive competence. The principle of subsidiarity operates only in relation to action taken within spheres of competence. Therefore there is no question of creeping competence of the kind to which the noble Lord referred.

Lord Swinfen

I wonder whether my noble and learned friend will give way. I asked him whether Brussels decided which areas came under subsidiarity and whether, once that decision was made, it was permanent and could not be altered.

7.45 p.m.

The Lord Chancellor

I had sought to answer that aspect. I thought that I was answering a more specific point which was made. On that specific aspect, it is a matter for all those concerned to consider whether or not the principle of subsidiarity strikes down or modifies a proposed legislative Act. If there is an ultimate dispute about that, and the Act is made, then the dispute will be for the Court of Justice of the European Community. As my noble friend will know, that court is not in Brussels but in Luxembourg. It is not a matter that is decided ultimately without the protection of the Court of Justice.

My noble friend Lord Pearson of Rannoch asked me whether I believe that the Court of Justice would give fair judgments in the light of the treaties concerning matters affecting the United Kingdom. My answer is, certainly, yes, that is the purpose for which the Court of Justice was set up and agreed to by all the member states when it was originally conceived.

Lord Pearson of Rannoch

I am extremely grateful to my noble and learned friend, but before he leaves this area I think that I should press a question that I and my noble friend Lord Swinfen put to him, and which I have not heard him answer. Can we take back these powers once they have passed the Community, even if we have agreed that they should pass the Community? Can this Parliament take back those powers, or, once these powers are in the occupied field, are they gone for ever?

The Lord Chancellor

I have tried to explain but perhaps I ought to make it clearer if I can. A power, a competence, is granted to the Community by treaty. If you have once granted a power to the Community by treaty, unless you denounce the treaty it remains binding. That is true so far as concerns the Treaty of Rome. There is no question of the Community being able to take power to itself except in so far as that power has been conferred upon it by a treaty between the member states. I think that that is undeniable.

I have tried to explain to the Committee the way in which that particular article operates. I hope that the explanation shows that this amendment is not appropriate in the circumstances. Many questions have been asked. I hope that I have answered the principal ones.

One point was asked of me about matters under the blotting paper (or some such phrase). I believe that my noble friend Lord Pearson of Rannoch referred to 19 directives "under the blotting paper". I know of none such. So far as I am aware, they have remained under the blotting paper, if they exist. However, I understand that a Green Paper is proposed which would seem to suggest that there are no such documents under the blotting paper. However, my competence to look under the blotting paper is rather limited. Such information as I have, and the nature of the proposals, suggest to me that there are none such.

The Earl of Onslow

Perhaps I may—

Noble Lords

No!

The Earl of Onslow

At Committee stage one is allowed to talk after a Minister. I wish to make one, or possibly two, extremely short points. We have had two hours and 17 minutes of debate.

Lord Hailsharn of Saint Marylebone

Now we shall have even more.

The Earl of Onslow

The noble and learned Lord has taken to intervening while mobile rather than when sedentary. It is an interesting and novel development.

We have had two hours and 17 minutes of debate on what is subsidiarity, not whether or not subsidiarity is a good thing. I believe that we would all agree that subsidiarity is a good thing. We have had two hours and 17 minutes on what is subsidiarity and, rather like the numbers of angels on the head of a pin, I do not think that we are a great deal wiser. It is the same situation as we had regarding union. The dangers of passing unclear law need no emphasis. Eventually it will produce a revocation. Someone will say, "Up with this we will not put", and an Act of Parliament will be passed which will go against the Treaty of Rome and throw the whole of Europe into terrible turmoil. By doing things like that, we are sowing the seeds of dragon's teeth for our future.

Lord Monson

Perhaps I may put one simple and short question to the noble and learned Lord. I have been trying to speak for half an hour. Will the manifest determination that the acquis communautaire shall be maintained in full, which is enshrined in Article 3b of the treaty, make it impossible for subsidiarity to apply to anything that has already been transferred to the competence of the Community, contrary to assertions made by certain Ministers of the Government?

The Lord Chancellor

I have sought to explain, but I have not succeeded in doing so fully to the noble Lord, Lord Monson. Competence goes to the Community by virtue of treaty agreement and in no other way. The principle of subsidiarity, as set out in Article 3h, will become a binding part of Community law only when Maastricht is ratified and will apply thereafter. That does not in any way preclude proposals to modify existing law by proper procedures, to take account of the principle thereafter. But the certainty of Community law seems to suggest that it is right that that be the procedure by which the principle should be given effect in relation to pre-enacted law. That is the law enacted under the existing treaties before amendment by the Maastricht Treaty, if ratified.

Lord Jay

Briefly, and solely concerning the amendment, a great deal has been said in the course of the debate but nothing said has altered my original contention that the central words in the second paragraph of Article 3b do not apply to areas or issues within the exclusive competence of the Community. The noble and learned Lord agreed with that. It follows that if, as the amendment proposes, we omit those words, we strengthen the effect of the working of the principle of subsidiarity. As I am strongly in favour of a really effective principle of subsidiarity, I certainly wish to press Amendment No. 47 to a vote.

7.52 p.m.

On Question, Whether the said amendment (No. 47) shall be agreed to?

Their Lordships divided: Contents, 32; Not-Contents, 143.

Division No. 2
CONTENTS
Ailesbury, M.	Marsh, L.
Belhaven and Stenton, L.	Milner of Leeds, L.
Beloff, L.	Monson, L. [Teller.]
Brookes, L.	Moran, L.
Bruce of Donington, L.	Morris, L.
Buxton of Alsa, L.	Onslow, E
Clanwilliam, E.	Oppenheim-Barnes, B.
Cross, V.	Parry, L.
Dacre of Glanton, L.	Pearson of Rannoch, L. [Teller.]
Dormand of Easington, L.
Gray, L.	Rankeillour, L
Hamilton of Dalzell, L.	Stoddart of Swindon. L.
Harmar-Nicholls, L.	Swinfen, L.
Harris of High Cross, L.	Tebbit, L.
Jay, L.	Tonypandy, V.
Jenkins of Putney, L.	Willoughby, de Broke, L.
Liverpool, E.
NOT-CONTENTS
Ackner, L.	Campbell of Alloway, L
Addington, L.	Campbell of Croy, L.
Airedale, L.	Carnegy of Lour, B.
Aldington, L.	Carnock, L.
Archer of Weston-Super-Mare, L.	Carter, L.
	Chalker of Wallasey, B.
Arran, E.	Clark of Kempston, L
Astor, V.	Clinton-Davis, L.
Barber, L.	Cockfield, L..
Belstead, L.	Colwyn, L.
Bethell, L.	Cranborne, V.
Blatch, B.	Crickhowell, L.
Boardman, L.	Cullen of Ashbourne, L.
Bonham-Carter, L.	Cumberlege, B.
Borthwick, L.	Denham, L.
Boston of Faversham, L.	Denton of Wakefield, B.
Boyd-Carpenter, L.	Desai, L.
Bridgeman, V.	Elibank, L.
Brightman, L.	Elles, B.
Brigstocke, B.	Elliot of Harwood, B.
Brougham and Vaux, L.	Elton, L.
Bruntisfield, L.	Ferrers, E.
Cadman, L.	Flather, B.
Caithness, E.	Fraser of Carmyllie. L.
Caldecote, V.	Goschen, V.

Graham of Edmonton, L.	Perry of Southwark, B.
Greenway, L.	Peyton of Yeovil, L.
Grey, E.	Pitt of Hampstead, L.
Hacking, L.	Prentice, L.
Hailsham of Saint Marylebone, L.	Reay, L.
	Renton, L.
Harding of Petherton, L.	Rippon of Hexham, L.
Harmsworth, L.	Robson of Kiddington. B.
Harris of Greenwich, L.	Rodger of Earlsferry, L.
Harvey of Prestbury, L.	Russell, E.
Harvington, L.	Russell of Liverpool, L.
Hayhoe, L.	St. Davids, V.
Henderson of Brompton, L.	Saltoun of Abernethy, Ly.
Henley, L.	Sanderson of Bowden, L.
Hesketh, L. [Teller.]	Seccombe, B.
Holderness, L.	Seear, B.
Hood, V.	Selsdon, L.
Hooper, B.	Sherfield, L.
Hothfield, L.	Simon of Glaisdale, L.
Howe, E.	Skelmersdale, L.
Howe of Aberavon, L.	Slynn of Hadley, L.
Howell, L.	Stedman, B.
Irvine of Lairg, L.	Stewartby, L.
Jay of Paddington, B.	Strabolgi, L.
Jeffreys, L.	Strathclyde, L.
Jenkin of Roding, L.	Strathmore and Kinghorne, E. [Teller.]
Kilmarnock, L.
Kimball, L.	Thomas of Gwydir, L.
Kintore, E.	Thomas of Swynnerton, L.
Lane of Horsell, L.	Thomson of Monifieth, L.
Lawrence, L.	Thurlow, L.
Long, V.	Tordoff, L.
Lucas of Chilworth, L.	Trumpington, B.
McIntosh of Haringey, L.	Turner of Camden, B.
Mackay of Ardbrecknish, L.	Ullswater, V.
Mackay of Clashfern, L. [Lord Chancellor.]	Vaux of Harrowden, L.
	Wade of Chorlton, L.
Macleod of Borve, B.	Walton of Detchant, L.
Mancroft, L.	Waverley, V.
Manton, L.	Whitelaw, V.
Marlesford, L.	Wigoder, L.
Mersey, V.	Williams of Mostyn, L.
Mishcon, L.	Wilson of Tillyorn, L.
Montgomery of Alamein, V.	Winchilsea and Nottingham, E
Murton of Lindisfarne, L.	Wise, L.
Oxfuird, V.	Wolfson, L.
Palmer, L.	Wynford, L.
Park of Monmouth, B.	Young, B,
Pender, L.

Resolved in the negative, and amendment disagreed to accordingly.

Baroness Trumpington

I beg to move that the House be now resumed. In moving that Motion, I suggest that the Committee stage does not begin again before 8.45 p.m.

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

House resumed.