MR MAJOR'S HOLY ROMAN EMPIRE

Noel Malcolm unravels the papal

origins of the EEC's new doctrine

`WE SHALL give flesh to subsidiarity. We shall give it weight. We shall show people what it means.' Thus spake Mr Major at Lisbon last weekend. The Word was made flesh by Almighty God; but in promising to give flesh to the word `subsidiarity', Mr Major has set himself a far more difficult task.

Theological comparisons are odious, but in this case they are unavoidable: for the concept of `subsidiarity' comes to us from a papal Encyclical, Quadragesimo anno, issued by Pius XI in 1931. It is a piece of shorthand for a Roman Catholic theory about the role of the state, a theory which Pius XI had special reasons for wanting to emphasise in that year. According to this theory, the state is a natural hierarchy of human associations, each of which con- tributes to the well-being of the others. The highest level (the state's government) supervises and encourages and cares for the lower ones, but without actually taking over their own functions. What this meant in 1931, of course, was that the state should not ignore the plight of the unem- ployed, but that it should not take over all the functions of the labour market either. A middle way, the Pope argued, should be

found between unfettered capitalism on the one hand and communism on the other. (The solution he suggested, re- organising society in 'vocational groups', bore more than a passing resemblance to the corporatist theories of Italian fascism; but that is another story.) In order to sum up the role of the state in this theory, the Pope used the phrase `subsidiary function'. The higher levels of the state, he said, should be subsidiary to the lower ones. At first glance this state- ment seems bizarre. But the Pope was writ- ing in Latin, where `subsidium' simply means help or assistance, and all he was claiming was that the higher levels should give assistance to the lower ones. He was not denying that the higher levels of the state were more important. On the con- trary, he emphasised that very point:

The State should leave to smaller groups the settlement of business of minor importance, which otherwise would greatly distract it; it will thus carry out with greater freedom, power and success the tasks belonging to it alone, because it alone can effectively accom- plish these ...The more faithfully this princi- ple of subsidiary function is followed, and a graded hierarchical order exists between vari-

ous associations, the greater will be both social authority and social efficiency ...

Such, then, is the principle on which Mr Major now proposes to model the develop- ment of Europe.

The first thing one notices about this principle is that it describes the internal workings of a state. The Prime Minister boasts unceasingly that he has stopped the centralising trend in Europe, and that he wants Europe to be built on co-operation between states; but to talk about Europe in terms of subsidiarity (as he does out of the other side of his mouth) is to talk about Europe as a single state — a 'graded hierarchical order' culminating in a single government. Or, to rewrite the first sen- tence of the quotation above, 'The Com- mission should leave to national governments the settlement of business of minor importance, which otherwise would greatly distract it.' Sir Leon Brittan has been known to make a similar point.

The second thing one notices about those papal pronouncements is that they are not, and were never intended to be, a precise set of guidelines for deciding which things should be done at which level. What level should things be done at? Answer: at their proper level. That is the sort of answer you can give if you are a Pope, writing for eternity, but it will not really do if you are drafting a treaty, or trying to interpret one in the European Court.

And yet each time one of our high-pow- ered intellectual politicians tries to explain what subsidiarity means here and now, he

comes out with the same kind of eternal platitudes. Mr Hurd's favourite definition of the term is 'the doctrine of minimum interference'. But 'interference' here means 'unwarranted intervention'; we can all agree that unwarranted intervention should be kept to a minimum, just as we can all disapprove of sin. The real problem is how to know whether any particular intervention is warranted or not, and that is a problem which no 'doctrine of mini- mum interference' will solve for us.

Similarly, Mr Hurd has also defined sub- sidiarity as 'the principle that the Commu- nity should carry out only those activities for which Community action is needed, leaving the rest to nation states'. His Min- ister of State, Mr Garel-Jones, concurs: `the first test is whether it is necessary to act at Community level'. Presumably nei- ther of these clever men expects to be taken literally. For it is a simple and obvi- ous truth that it is not necessary to 'act at Community level' at all: everything could be done at national level, as it was in Europe until 1952 and in Britain until 1973. What they mean, one supposes, is: 'necessary, given our other assumptions about why we want the Community and what we want it to do'. In which case, it is those assumptions that we must turn to and try to work out more precisely when testcases arise; we cannot sit back and expect some airy organising principle to do that hard work for us.

A whole sottisier of definitions of sub- sidiarity can be compiled, and the same objection applies to each and every one.

According to Mr Major, for example, it means that 'things must be done on a national level when they can best be done on a national level'. Yes indeed, oh yes; but `best' according to what criteria? Those who value national democracy tend to think that keeping the most important decision-making powers at the national level is a good in itself; but Mr Major seems to have some other, more technical criteria in mind.

One criterion much in favour in the EEC is 'effectiveness'. According to the 'Federal Constitution of the European Union' approved by Christian Democrat leaders (Kohl, Andreotti et a!) in 1990, the Union should act 'in those areas where its inter- vention will be more effective'. Even Mr Lamont (in those far-off days when he was allowed to address the Bruges Group) once explained subsidiarity as the rule that `no responsibilities or powers should be trans- ferred to the Community that can be assumed or exercised more effectively at national or local level'. But the magic word 'effectively' is of little help: it all depends what effect you are after. If, for example, you want want a single European policy on indirect taxation, then the most 'effective' way to get it is to transfer such powers to the Community.

This is the fatal flaw of all versions of subsidiarity. They all agree that European policies should be made at European level, and national policies at national level; and they all fail to show why we should have European policies on some things rather than others. Should we have a European

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policy on education, or vaccination, or magpie-shooting? Subsidiarity will not answer that question; but once we decide to have any of those European policies, subsidiarity will then tell us that the policy can be carried out more 'effectively' by a European body. Subsidiarity is the cart, and policy-making is the horse; when the horse has stepped into a quagmire, you can hardly expect the cart to pull it out.

It is a quagmire which we have entered — to extend the metaphor — with our eyes open. When Mr Hurd started com- plaining last year about the EEC interfer- ing in the 'nooks and crannies' of our national life, he had two things in mind. The first was the stream of regulations on lawnmowers, sausages, kippers, etc., which form part of our vertiginous progress towards the Single Market. These matters are part of the 'exclusive competence' of the Community; so, according to the Maastricht Treaty, the principle of sub- sidiarity cannot apply to them anyway. The second thing that bothered Mr Hurd was the use of EEC environment laws by Mr Ripa di Meana to block British construc- tion projects. Here, oddly enough, was the one area in which the EEC treaties already contained a version of the sub- sidiarity principle (in the environmental section of the Single European Act). The British government could have taken Mr Ripa di Meana to court, arguing that laws about motorway-building in Britain should be left to Britain to decide. But Mr Ripa di Meana's reply would have been simple: he wasn't applying a law about motorway- building in Britain, he was applying a law about motorway-building in Europe, which had been decided, quite properly, at the European level.

If the EEC is a quagmire, that is because we, the participants, have made it that way. It is no good wishing now that the powers and responsibilities of the Community were laid down in such clear-cut terms that we could just apply some strict legal principle of ultra vires and stop the Commission from `interfering'. If that was what we wanted, we should have started clear-cutting our terms a long time ago. What the Treaty of Rome, the Single European Act and the Maastricht Treaty put before us is a strange, gelatinous mixture, partly a consti- tutional document and partly a statement of open-ended policy goals. Clear-cut legal principles such as the rule of ultra vires, or the American Tenth Amendment (which reserves to the individual states all powers not expressly granted to the Union), can be of little help in dealing with clauses which say 'The Community shall contribute to the flowering of the cultures of the Member States' or 'The Community shall contribute to the attainment of a high level of con- sumer protection'. Still less, therefore, can such a vague and ineffectual thing as the principle of subsidiarity avail against this interferers' charter. Trying to use subsidiar- ity to control the contents of the Maas- tricht Treaty is like trying to give hard edges to a blancmange, using a feather duster.

`I'm having to take a job — we've got to get some money together for a divorce.'