Business of the House

Debate between Bernard Jenkin and Oliver Letwin

Wednesday 3rd April 2019 Commons Chamber

[Sir Oliver Letwin]

I would never take offence from my right hon. Friend the Member for Derbyshire Dales (Sir Patrick McLoughlin), who is a very old friend and colleague. We have been through many things together in Cabinets and shadow Cabinets over many years, and although we disagree about this particular constitutional issue, we agree about much else.

It is of course the case that the Standing Orders of the House of Commons are the possession of the House of Commons. It is therefore the case that, as in all other matters pertaining to the House of Commons, a majority may alter them. If my right hon. Friend is asking me the only question that he can logically ask me under those circumstances—that is, whether a majority of Members of the House of Commons can alter the Standing Orders of the House of Commons at any given time should they wish to do so—the only answer I can give him is the only answer that he could give me as a former Chief Whip, which is yes.

Normally, the Government Chief Whip commands a majority sufficient at all times to ensure that the Executive are able, in effect, to change the Standing Orders of the House of Commons, but this is a very unusual provision of our Parliament. In the United States Congress and many other legislatures, it would be regarded as quite intolerable for the Executive to be able to change the procedures of the House using that kind of whipping, to which we are entirely accustomed. However, it is our method, and if the Government of the day have a sufficient majority to be able to do so, they will be able to exercise that method. On this occasion—not in general, but in relation to this particular set of issues—the Government do not command a majority in all cases, as has been frequently remarked by Members on both sides of the House. They may do tonight or they may not; they have not on some other occasions. Where they do not command a majority, it is open to Members of the House of Commons in the majority to alter the Standing Orders.

[Sir Bernard Jenkin (Harwich and North Essex) (Con)]

There is a danger in the comparative analysis of different constitutions, because of course the United States constitution has a very different method of the separation of powers. As I pointed out in the debate we had on Monday, the President has a legislative veto unless Congress has a two-thirds majority. In any system of government, there is usually an opportunity for the Executive to veto legislation, and that is what our Standing Order No. 14 effectively provides for, with money resolutions, Queen’s consent and that sort of thing. All that is being bypassed in this procedure, which has no mandate or democratic legitimacy from the voters. This is therefore a very questionable process, which is undermining the accountability of how laws are made in this country.

[Sir Oliver Letwin]

Alas, I think that Brexit will leave behind it a trail of many difficulties for our nation, as we seek to heal the divisions and so on. But I suspect that one of the good things about it is that it will have provoked between my hon. Friend and myself many years of interesting discussion about the evolution of our constitution. My own view is that our constitution is not very well constructed, and does not contain proper checks and balances in a written form in the way in which some better constitutions do. Interestingly, that includes the Basic Law, which we ourselves wrote for the Germans and which is a much better organised constitution; there is not the veto to which my hon. Friend refers, but there are checks and balances through which it would certainly be impossible for the Government to engage in the sort of things that have become usual since 1902—I mistakenly referred to 1906 on a previous occasion—and that have given the Executive too much control over the proceedings of the House of Commons.

Interestingly, some of my hon. and right hon. Friends, including my right hon. Friend the Member for Haltemprice and Howden (Mr Davis), have for a very long time argued that the Executive have too much control over the House of Commons. It is just that, on this particular occasion, he would like the Executive to have more control—or would have liked the Executive to have more control before yesterday, in any case. I rather think that people’s views on this constitutional matter are currently being overly influenced by their view of what the desirable result is, and I admit entirely that mine are too.

I do not think that this is a minor constitutional wrangle. We could go on happily having this discussion for some years, and ought to in a proper way. I am sure that my hon. Friend the Member for Broxbourne (Mr Walker), the Chair of the Procedure Committee, will want to inaugurate proper discussions of these things at much greater length. At the moment, this nation faces a very serious issue by anybody’s reckoning—those who are in favour of stepping out on Thursday week and those who are against it. We all agree that it is a very important step. The business of the House motion provides for a Bill that has the effect of making it not possible for a Prime Minister to take that step without coming to the House, proposing an extension and trying to obtain an extension approved by the House from the EU. That is the importance of it, and I think that it is actually very important.

European Union (Withdrawal) Bill

Debate between Bernard Jenkin and Oliver Letwin

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Sir Oliver Letwin]

Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.

[Mr Jenkin]

I understand the words

“in accordance with any retained case law”

in clause 6(3)(a), but I do not understand the words

“any retained general principles of EU law”.

That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.