A little local difficulty needs flexible response

Date: 20/11/1997

By Ian S. Forrester QC

EVERYONE knows that 290 years after the Scots parliament decided to merge with its English counterpart, (the Scottish delegates to the intergovernmental conference having pocketed handsome inducements to encourage them to vote correctly), the people of Scotland have (without comparable financial incentives) opted for a new Scottish parliament.

That presents interesting and important challenges for Scotland, for the UK and for the machinery of government in both areas. It will also raise questions in Brussels.

Europe contains a number of small territories whose constitutional status reflects dynastic or military history. Some are micro-states closely integrated into the economy and social life of their host, like San Marino (which has a special arrangement with the Italian Republic on the levying of fiscal and excise duties) or the Vatican.

Others are more isolated and distinctive, like Andorra ( a condominium under the suzerainty of a bishop and a head of state).

In addition, every member state has given power to local authorities or regions to run their own affairs: Germany and Belgium have very autonomous regions with extensive competences, while Scandinavian countries have powerful cities and local authorities.

The European Commission has to reconcile its basic mission to achieve the common market - a vast area free of internal obstacles to the movement of persons, goods and capital - with the richness of European constitutional and historical tradition.

It, commendably, has a certain sympathy for the locally distinctive and has been willing to negotiate exceptions from normal EC principles. So women may not invoke Community law if they wish to disturb the monks of Mount Athos and incomers wishing to buy property in the Alun Islands will have to persuade the locals first.

Local autonomy, subsidiarity and regional diversity are fashionable notions but, whenever central government power is devolved, there is a risk of conflict between the centre and the region about whether what is being done locally is consistent with EC principles. When a Welsh local authority prescribes Welsh slate for aesthetic and environmental reasons, or the London boroughs oblige heavy lorries to fit airbrake silencers not required by EC legislation, there is a problem of enforcement and interpretation.

In principle, all EC rules should be respected with equal rigour. In some cases, such as financial services, the public interest will admit no exceptions.

But sometimes (often?) a directive is drafted for the needs of a large member state. If a small entity were legislating for itself, its rules would not be as formalistic or bureaucratic. If there are only 50 civil servants in the territory, it is improbable that all the rules will be applied perfectly.

Take, for example, EC legislation on databases. Concern over the proliferation of databases filled with sensitive information about individuals has been solved at EC level by a new layer of bureaucracy which takes insufficient account of the physical limitations of a small administrative entity. Similarly, a small professional body might deal with admitting new members from other member states simply and pragmatically, but EC legislation may inadvertently impose problems of physical resources.

To address these problems, 'sub-national authorities' will often wish to talk to the Commission. There are about 140 such offices in Brussels, of which maybe 15 are from outside the EC. They vary greatly in size, resources and activities.

The office of a wealthy Land such as Bavaria has the look and feel of a small country's embassy. Spain encourages a policy of regional recognition and regions such as Catalunya and the Canary Islands may aspire to playing a political role within the Community institutions. Several Italian regions have a presence in Brussels, usually small and concentrating on obtaining funds for infrastructure projects in Italy.

These offices have no official status vis-à-vis the EU institutions, so they have to work through the home country's officials and ministers if they want to make a formal initiative. Belgian regions are an exception, as the 1994 constitution allows regions to have treaty-making powers in their area of responsibility.

The home member state is responsible if a region's local activities infringe EC law, so there is sometimes tension in the relationship. In past years, UK mandarins have been uneasy about bilateral frolics between local authorities and the Commission. Other governments seem to be more relaxed.

Other quirks can or will arise. But the balance of power between Edinburgh and Westminster will be much less uneven than between, say, the Italian Republic and the harbour-master of Genoa, though there will be the potential for tension in reconciling the need for regional diversity and independence with the EC law obligations of the member state.

But constitutional litigation will not go away; it is inevitable in a healthy federal or regional system.

HThis article reflects the personal views of the author.