European Union Bill

My Lords, with some regret, I think I am bound to irritate the noble Lord, Lord Howell, but I hope I do not irritate him so much that he regards what I say as being entirely in the world of fantasy. I hope he knows that I have a high enough regard for him not to use his time in that way. In introducing the amendment I would like to reflect briefly on the debate on the previous amendment. Eminent Members of your Lordships’ House—and eminent lawyers—had a very clear difference of view about whether a codification exercise, which was intended to be non-binding in practice, had become a substantive change and a move of powers. I do not want to put words into the mouth of the noble Lord, Lord Waddington, but in essence I think that was his argument. The noble Lord, Lord Brittan, countermanded that argument by saying that it depends on the actual codification or whether what is being undertaken goes beyond the codification. I hope I have understood him correctly—that codification is not a change but an assembly of existing law in a convenient form. That argument is readily understood. The contribution of the noble Lord, Lord Hannay, also readily understood that. I know from past experience in the area of employment law that in trying to make sense of a codification of different elements of law, it is necessary on occasion to reconstruct the language, to some extent at least, to ensure that the assembly adds to the process rather than produces confusion. I do not think it is fanciful at all to think into the future and to consider that there may be a number of occasions—not rare occasions—when a lively discussion will take place about whether some new movement of competence is taking place or not. As they have today, noble Lords—and no doubt many in the other place and in the country as a whole—will take part in that discussion. Some will argue fiercely on one side that there is a change that requires a referendum, subject to having gone through a parliamentary process and subject to the possibility of judicial review—I understand all those points perfectly well—and others will argue that it is no such beast, that it does not require any of those kinds of steps because it is merely a tidying up in the sense of assembling the changes into a convenient form under the existing law. I do not intend to be disagreeable about the points that the noble Lord, Lord Howell, has made, but I put to him this thought: that were the world a very tidy place, and were everyone to come along with changes that they wanted to see to arrangements in European law with a declaration that they were indeed changes to European law, and there were a movement of competence from one place to another, I have no doubt that we would see each of those events as a major event and everyone would understand the process in exactly the way that he describes it. But I do not think the world is like that. I think it is a much more muddled place in which people move and nudge existing arrangements to try to gain some advantage out of them or to tidy them up, in the course of which someone will say that an advantage is being gained and the argument will rapidly emerge that this is precisely what this piece of legislation was designed to prevent. That is what was called creep earlier in the debate. That is why I do not think it is reasonable, with the greatest respect, to say that it should be blatantly obvious to the Opposition or to anyone in your Lordships' House that one set of circumstances applies and that everyone can see that it would plainly happen very rarely and would require a special arrangement, rather than that there are things happening which many people will think pretty much continuously require some sort of special arrangement, because that is the nature of political life. With the amendments in this group, we are making a legitimate attempt to say that it would be helpful if Ministers had scope to move: a capability to do the necessary political work under certain circumstances and within the constructs of United Kingdom law, and to respond to the circumstances that they face. I will illustrate those circumstances. Some of the core arguments concern these three amendments. Because all noble Lords want to make progress, I will not tire the House by going into them separately, except to give illustrations in each case. For example, in discussions on the first amendment—it is on the effectiveness of the European Union single market—someone may argue that under the existing body of European competition law, there is already more than enough law to deal with most competition issues. I would be inclined to agree. However, I have also observed that there are some environments in which competition issues have become much more acute and much harder to resolve. For example, in the digital environment, the effectiveness of full competition is extremely hard to resolve. We see processes whereby one technology or one source-coding system becomes dominant and it is extremely difficult for others who wish to use that to create and generate new businesses—and we all want to see those new businesses created and generated—to break in. Is it impossible for them to break in or to use existing competition law? Arguably it is not. However, I observe that it takes years to do and the situation is seldom resolved in a way that it is regarded as completely satisfactory to all those involved. Those who have the proprietary right, particularly to source code, seem to resist making it available if they possibly can, largely because having it creates monopoly conditions. I understand completely why they want to retain such monopoly conditions if they can. A noble Lord may say in this debate that competition law is strong enough in those circumstances for us to be able to resolve these issues through domestic and principally European courts. However, I invite the House to think about that process. It takes years and, broadly speaking, the resolution at the end is regarded as unsatisfactory. When cases in the area of competition take years, by the time that they are resolved—if they are resolved—it is too late. The SMEs—which largely are the bodies trying to use the new technologies in order to develop and are precisely the kinds of business that we want to encourage, because the future of our economy probably will be more dynamic in their hands—have gone out of business because they have lost the capacity to build on those technologies or that source coding. That is an example of a digital platform which, if it is subject to the arrangements as they stand, is extremely unlikely to work. It may be that in media concentration similar issues will arise: the capacity to deal in a timely way with the risk of monopolies emerging in what should be a competitive market. Noble Lords should not take this point the wrong way. I do not believe that any noble Lord or anyone else would be negligent about wanting to resolve such a matter. I am simply expressing the difficulty that we can observe empirically in resolving such a matter. While it may be felt in the European Union felt that an extension of the legal arrangements that it has to deal with these very rapidly moving economic and financial models—and they move very rapidly—would be valuable, what sense would there be in a Minister of the United Kingdom being unable to take part in such a discussion, or agreeing to take part but only under conditions where it was too late to take part?