European Union Bill

Lord Brittan of Spennithorne Excerpts

Tuesday 3rd May 2011 Lords Chamber

[Lord Brittan of Spennithorne]

With great respect to my noble friends Lord Waddington and Lord Lamont, I do not think that they are correct in this case. The test of what is codification and is therefore excluded from a referendum provision is an objective one. It does not depend on the procedures used to achieve the codification; it depends on whether there has been actual codification or something going beyond it. Codification, in the normal use of the word in English law, which is how the provision would be construed, means not a change in the law but the assembly in a convenient form of existing law. Of course there can be room for argument as to whether in a particular case there has been a change or merely a codification in the sense of an assembly of existing law, but the test is an objective one, not what procedure has been—

[Lord Waddington]

I—

[Lord Brittan of Spennithorne]

Just one moment—not the way in which that has come about either in this country or elsewhere. In the last analysis, the test of whether what has happened is codification and is therefore exempt from a referendum would be applied in the normal way by the British courts applying common-law principles.

[Lord Waddington]

Is not my noble friend at loggerheads with the noble Lord, Lord Hannay? The noble Lord, Lord Hannay, was arguing a short time ago that there was an existing competence. It was not at that time enshrined in treaty law but, as the result of an intergovernmental agreement, there was a competence. Clause 4(4)(a) refers to the codification of a practice in relation to the present exercise of an existing competence, so I think that I am right and that my noble friend is in error.

[Lord Brittan of Spennithorne]

I do not think that that is the case. The question is: is it codification or not? That is the question, not how it has come about. If it is not codification but the creation of a new law, the provision exempting the requirement for a referendum does not apply. If it is codification, which will be determined by an objective test applied by British courts in accordance with normal common-law principles, it applies. That would mean that there has been no change in the law of England, however that may have come about.

[Lord Waddington]

Is my noble friend therefore saying that in the new article inserted in the treaty by Lisbon there was in fact no codification, although it was stated to be a codification?

[Lord Brittan of Spennithorne]

I am not making any statement about whether or not any particular provision was codification. I am talking about the correct interpretation of this provision in this Bill with regard to the future, which determines whether or not a referendum is called on the question. The test is an objective one: whether what occurs in future amounts to a codification, however it has been achieved, or goes beyond a codification and involves a change in the law. It is as simple as that.

[Lord Blackwell]

This is the one amendment this evening with which I confess that I have some sympathy. My interpretation of Clause 4(4)(a) is that it talks about the codification of practice under an existing competence. It does not talk about the codification of an existing competence but the codification of practice. As my noble friend Lord Waddington said, the EU has a history of stretching the practice of exercises of competence to take on ways of applying it that may not have originally been envisaged by those who agreed to the competence in the treaty. The example burnt in my mind is the notorious use of the health and safety provision to legislate from the EU on UK employment law a decade or so ago.

[Lord Brittan of Spennithorne]

I assure my noble friend that whether or not that is a good thing or a bad thing—I have a lot of sympathy with the view that excesses happened there—by no wild stretch of the imagination could that be described in English law, and we are in the process of creating a British statute, as codification. It might be wonderful; it might be disastrous; it might be neither; but it is not codification and therefore the provision would not apply.

[Lord Blackwell]

I said that I had some sympathy with the amendment, and I very much hope that the Minister will be able to reassure me. To my mind, that was an example of a practice coming into effect which could then be claimed was an existing practice that simply needed to be codified. I am not a lawyer, but if something can be done under an existing competence, why does it need to be codified? The EU already has the power to do what it needs. If something is then codified, the danger is that it creates a new base, or ratchets up the base, from which we can then have further ingenious development in practices. I am therefore very nervous about allowing codification of this sort to take place when, if the EU is already doing it, codification does not seem to be needed. I would very much welcome the Minister explaining and perhaps thinking again about whether that exemption is required in the Bill.