European Union Bill

Debate between Lord Lamont of Lerwick and Lord Waddington

Tuesday 3rd May 2011 Lords Chamber

[Lord Waddington]

That is nothing to do with the case that I have raised. I am saying that the Bill deals with all sorts of situations where it is said that there is a transfer of competence, and that there should therefore be a referendum. I am pointing out that, in this clause, what is dressed up as a mere codification can often be a transfer of competence and the conversion of an agreement between members states that could be altered at the drop of a hat into binding treaty law. That is what I am talking about. I beg to move.

[Lord Lamont of Lerwick]

My noble friend Lord Waddington is to be congratulated on and thanked for raising an extremely important point on which I should like the Minister’s reassurance. I should like him to address the points made by my noble friend.

Of course I understand that the Bill deals only with future treaty change, not the existing provisions of the treaty. If a power of competence has already been conceded to the EU from the UK, the decision obviously cannot be reversed by the Bill. Under it, codification does not require a referendum in any case, including a codified transfer of power or competence. Why? I know that the Government’s argument is that if codification takes place by the granting of a formal treaty base for an action, the transfer of power has already taken place, either under the treaties or through a different general article, such as Article 352.

However, the point that the noble Lord, Lord Waddington, raised is important. I know that some members of the Committee dislike the phrase “competence creep”, but a transfer of powers could happen through codification and the interpretation of existing treaties. I return to the point to which I referred previously, when challenged by the noble Lord, Lord Tomlinson, about an example of competence creep. I cited the use made of Article 122 of the Treaty on the Functioning of the European Union to set up the European financial stability mechanism. That article, as many Members of the Committee are aware, states that financial assistance can be granted to a member state where the state is,

“in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control”.

It is very difficult to argue that the case of the financial difficulties which Portugal got into were a natural disaster or entirely beyond its control. At the very least, it seems to me that there was a significant failure of regulation, and, other people would argue, of budgetary and other policies as well.

I do not want to go into that but, to many people, that seemed a bizarre interpretation of Article 122(2). It is that sort of thing that gives rise to the anxiety that the noble Lord, Lord Waddington, articulated. Of course I understand that there is a case for codification and that it will be necessary. Perhaps a significance test could be allied with that when assessing whether codification could be misused in that way. What the noble Lord, Lord Waddington, said, is not a fantasy or an imagined danger—it is very real when one looks at how legislation has happened in the past.