Business of the House

Debate between Lord Clarke of Nottingham and Bernard Jenkin

Monday 1st April 2019 Commons Chamber

[Sir Bernard Jenkin]

Very droll. My hon. Friend rather misses the point of my opening remarks that I do not wish to discuss Brexit. I simply point out that he voted for the European Union (Withdrawal) Act 2018, which legislated for us to leave the EU with or without a withdrawal agreement. He put that on the statute book with me, so in that respect, parliamentary democracy has been served.

[Mr Kenneth Clarke]

My hon. Friend keeps referring to me, yet I voted for the Prime Minister’s withdrawal agreement three times. I accept that the House, by a large majority, is settled on a course, which I deeply regret, to leave the EU, and therefore I am trying to make some progress on what the House can agree about the form of that leaving. The Government are not prepared to give the House time to express an opinion or reach an agreement on that. As my hon. Friend the Member for Grantham and Stamford (Nick Boles) implied a moment ago, I strongly suspect that my hon. Friend the Member for Harwich and North Essex (Sir Bernard Jenkin) would take a different view if the Government were excluding no deal, which had, by some chance, the support of the majority of the House—though 400 people voted against it the last time it was raised.

[Sir Bernard Jenkin]

I say to my right hon. and learned Friend that the problem with the process of indicative votes is that MPs are free to pick and choose whatever policies they like, without any responsibility for what happens afterwards. There is an obvious flaw in that process—I look particularly at Opposition Members. Especially in a hung Parliament such as this, it is not unreasonable to suspect that individual Members might have ulterior motives for supporting or opposing particular measures, rather than voting just on their merits. After all, the House of Commons is a theatre, within which different political parties compete for power, either by trying to avoid a general election or trying to get one by collapsing the Government. Amid that chaos, who is to be held accountable for what is decided?

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and Bernard Jenkin

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Mr Jenkin]

I will come back to the way Parliament interacts with the process, but it would be really rather foolish for this House and the Government to premise all their plans on the basis that that request would be acceded to, because it would require unanimity. I have not heard a single public statement from the EU or a European diplomat that suggested for a moment that they would countenance extending the deadline. Of course, why would they? The deadline written into article 50 is to their advantage. I expect that the hon. Gentleman would have voted for the Lisbon treaty, which contains article 50, but I did not vote for it. I have always thought that article 50 was a snare and a trap. It sets a deadline, against which we are now negotiating, and that is the only prudent way to negotiate.

I loathe secondary legislation that amends primary legislation expressed in Acts of Parliament. It is an odious practice that has entered the legislative process in this House—this is by no means the first Bill that contains so-called Henry VIII clauses—but I can justify such powers as a basis for reversing the effects of our membership of the EU. It may seem to be an irony, but it is by the process of secondary legislation that we have been gradually integrated into the EU.

We have seen order after order coming under section 2(2) of the European Communities Act 1972. More often than not, it was a “take it or take it” option: we did not even have a “take it or leave it” option once it was expressed in EU law. The advantages of allowing secondary legislation under this Bill are that, first, the legislation will ultimately be answerable to the House; secondly, the powers are temporary; thirdly, they can be subject to revision or annulment at any future time; and finally, they are underpinned by the democratic authority of a referendum.

On a “take it or leave it” vote, I do not remember debating a single new treaty that was offered to the House on the basis that we could amend the treaty by passing an Act of Parliament. Whether to accept the Lisbon treaty was a “take it or leave it” decision. We were told that if we did not accept the treaty, it would create such chaos that it would force us to leave the EU.

I do not doubt the bona fides of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others on the Government Benches, but my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) exposed very ably the fact that there are people in the House who want to use amendment 7 as a means to extend the negotiation. My right hon. and learned Friend the Member for Rushcliffe was absolutely explicit on that point. I appreciate that the shadow Minister, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), did his best to avoid answering the question, but he made it clear that he thinks the deadline will have to be extended.

[Mr Kenneth Clarke]

I thought for a moment that my hon. Friend meant all that stuff about my challenging the result of the referendum.

[Mr Jenkin]

No, no, no.

[Mr Clarke]

I am sorry; I misheard my hon. Friend. I do not think for one moment that we will have completed any of these negotiations by March 2019, but I will wait to see. There are perfectly clear arrangements in article 50 for the time to be extended. I have met several other European politicians, including some of those involved in the negotiations, who rather expect that to happen.

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and Bernard Jenkin

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

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

This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill—it is an administrative measure. I spent many years on the Opposition Benches—on the Front Bench and on the Back Benches—practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made—on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition.

Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.

[Mr Jenkin]

My right hon. and learned Friend sets out the common ground we should all be on. However, the debate was not assisted by Tony Blair, who was on the television yesterday speaking about how to deal with this issue. He said:

“Paradoxically, we have to respect the referendum vote to change it.”

There is an understandable suspicion among Conservative Members that some people have not really accepted that we are leaving the European Union. The fact that the official Opposition have chosen to vote against the whole Bill underlines that they are rather reluctant to accept the decision the British people have made.

Before I move on, I should re-emphasise that the Hansard Society proposals have a lot to them, and we should be able to discuss them. I hope that, behind the scenes, colleagues will talk across parties on these matters, as one or two of us have already suggested we should.

However, let me put this in the much wider context, because we are getting rather lost in the detail of the Bill. We are forgetting what the Bill is for and the context it is being discussed in: we are leaving on 28 March—or whichever date it actually is—next year. It might be helpful to have the exit date on the face of the Bill at the outset, to provide additional clarity that negotiations are in progress, or should be.

I think everyone is getting a bit disappointed that there has not been more substantive discussion about the issues that really matter. The European Union’s position is beginning to look more and more unreasonable as it refuses to discuss the end state of the relationship that we all want to see, insisting on an up-front payment, or promise of payment, before it will discuss those matters. I have absolutely no doubt that the EU is playing for time for some reason, possibly because of the German elections, and is likely to crumble on that, and to start to talk seriously about the issues that we need to discuss.

We can talk too much and too glibly about cliff edges; I notice that even the Government have put the term “cliff edge” into their documents. Let us face it—the United Kingdom does not want a cliff edge. We are offering the rest of the European Union seamless trade, as far as possible, no tariff barriers and mutual recognition for products and services.

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and Bernard Jenkin

Thursday 7th September 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The Opposition spokesman has just reminded us that this Bill was trailed for a long time as the “great repeal Bill”, which is a very unlikely title. Fortunately, it repeals hardly anything at all, which is one blessing. One thing that it does repeal, however, is the European Communities Act 1972, which is a particular irony for myself and, no doubt, for the hon. Member for Bolsover (Mr Skinner), as we well remember that Act. I was then a Government Whip and engineering, mainly by co-operating with the Jenkinsite faction of the Labour party, how we were to get the vote through against the rebellious, imperialist Eurosceptics who were then on our Back Benches. It is therefore an irony that a complete mirror-image debate now presents itself to me rather many years later.

My starting point is where the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) finished. I have to accept that we are going to leave the European Union. I accept that because this House passed the legislation to enact article 50 by a large majority. I argued and voted against it, but it went through, and it is idle to pretend that it is politically possible for that to be reversed. The question now is how we leave. I quite accept my right hon. Friend the Secretary of State’s basic premise that technical legislation is required to ensure that it is practicable to get a smooth legal transition, but I do not think that the Bill confines itself to that aim, as has just been said. A Bill of this kind is necessary, and we will have to vote for it, but the question is whether this particular form of the Bill is remotely acceptable.

I studied the amendments tabled by the official Opposition, and indeed those tabled by large numbers of other Members, and my conclusion was that I found myself agreeing with the overall majority of the sentiments and opinions in all of them. The one thing that gave me a problem was that they all suggest that the House

“declines to give a Second Reading”

to the Bill, which would stop any possibility of our making the required changes. However, minded as I am to contemplate voting for Second Reading, I will need some assurances before we get there, in particular that there will be sufficient movement on some of the unanswerable points being made about parliamentary democracy and a smooth transition to whatever the alternative is, so that the Bill becomes something other than wrecking legislation if it proceeds. I have not decided yet—I am actually going to listen to the debate, which is a rare feature in this House, because if we were to defeat the Second Reading, the Government would be obliged to bring back another Bill to try to achieve the same purpose. If the Government will not move in the next two days of debate, we may have to force them to go back to the drawing board and try again to produce a Bill that is consistent with our parliamentary traditions and that gives this House the control that leaders of the leave campaign kept telling the British public during the referendum campaign they were anxious to see.

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

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will not, because large numbers of people want to speak and I want to touch briefly on the time constraints. During the proceedings on the 1972 Act, I have no doubt that the hon. Member for Bolsover, like me, sat through days and days and weeks and weeks of very high-quality debate. It was a historic moment and it was not constrained by these Blairite notions of family-friendly hours, timetables and so on. I do not want to go back to the all-night filibustering and some of the nonsense that led to those practices being discredited—that is not suitable in the 21st century—but this Government began this process by trying to argue that the royal prerogative enabled them not even to bring article 50 before the House. They have been trying to reduce parliamentary scrutiny and votes ever since the whole thing started.

As a simple example, I raised with you a few moments ago, Mr Speaker, the question of the 5 o’clock rule. Apparently we all have to stop at 5 o’clock this afternoon. It would reassure me about the Government’s intentions if the opportunity were taken to lift that limit now. The Leader of the House only has to rise at some time in the next hour or so and say that the 5 o’clock will not be invoked today, and all the time constraints that we face will not be a problem. I hope that the Bill’s programme motion will not confine debate to a comic number of days. The speech of the right hon. and learned Member for Holborn and St Pancras showed how complex some of the debates will be, and we do not want to be told that we have to give legal analysis in five minutes flat or be cut out by some quite unnecessary timetable. We have at least until the end of 2019 to get these procedures right.

There are two broad issues. One of them I will leave alone because the concerns have been dealt with brilliantly and will dominate a lot of today: the Henry VII clause, the sweeping powers and the extraordinary nature of the legislation. I will not try to compete with what I think, with respect, was a brilliant speech from the right hon. and learned Gentleman, and I hope that we will hear some reply to it over the next two days of debate—I am sure that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) will touch on it.

My own analysis of clauses 7 and 17 is probably not up to the standards that have already been demonstrated, and there is no point in repeating the case, so I will just say one thing to my right hon. Friend the Secretary of State and his colleagues about what I expect in response. We are told that conversations will be held with my right hon. Friend the Member for Broxtowe (Anna Soubry), and I am delighted to hear that. We are told that we will have assurances about how Ministers are going to use the powers, but at every stage in my right hon. Friend the Secretary of State’s speech he actually defended the wording in the Bill, as he had to, and did not make the faintest concession either to the justifiable concerns about the impact on devolution or to the even bigger concerns about whether we are going to fritter away parliamentary democracy in this House by passing the Bill in its present form.

I know that my right hon. Friend is sincere in his assurances. He is one of the people in this House whom I would trust to seek to deliver what he is offering to us, but the reality, as someone has already said, is that we are all transient in politics. He will come under pressure from some of his colleagues, and we have no idea who will be in any particular post in 18 months’ time. The letter of the law will determine the scope for parliamentary scrutiny. I do not want more assurances or charm; I want positive amendments and changes. The Government will salvage their reputation if they take the lead and produce amendments that answer the points made by the right hon. and learned Member for Holborn and St Pancras, and if they reassure us that the drafting was a misunderstanding. Better drafting can make it the no-policy-change, technically necessary Bill that I would quite happily support.

The second issue, very briefly, is the question of staying in the single market and customs union during the transitional period. Of course we will have a transitional period, of course it has to be a smooth transition and of course by the end of 2019 we will negotiate a basis for future free trading arrangements, but the Government have to move, just as the Opposition have moved. I made a speech in the Queen’s Speech debate explaining why I am in favour of staying in the single market and customs union at least for the transitional period, and I then answered the various arguments that are routinely thrown out, so I will not repeat any of that now.

There is now only a whisker of difference between us. I do not deceive myself that I converted the Labour party, which has tabled an amendment identical to my arguments in the Queen’s Speech debate, with which it did not then agree, but its proposals are remarkably near the Government’s proposals.

We all know, and British business knows, that we need a smooth transition. We do not need change until we are certain that we have some acceptable new arrangements. The Government’s position paper on customs arrangements—I will not read it all—says:

“This could involve a new and time-limited customs union between the UK and the EU Customs Union, based on a shared external tariff and without customs processes”.

I will not go on, but there is an absolute whisker of difference between the Government’s paper and what the Opposition are now saying, and what everybody of the slightest common sense, in my opinion, is saying—that we should stay in the single market and the customs union until we know that we can smoothly transfer to some new and equally beneficial arrangement. Again, I would like some reassurances on that.

I detect in the wording of the Bill and the Opposition’s amendment that we are crawling towards the cross-party approach that will obviously be required to settle this in the national interest. It is absurd for the Labour party to say that it is all agreed on the new policy it has adopted, and it is absurd for the Conservative party to say, “We’re all agreed on whatever it is the Secretary of State is trying to negotiate in Brussels.” The public are not idiots; they know that both parties are completely and fundamentally divided on many of these issues, with extreme opinions on both sides represented in the Cabinet and shadow Cabinet, let alone on the Back Benches.

Let us therefore resolve this matter. Let us make sure this Bill does not make it impossible to stay in the single market and customs union, and let us have a grown-up debate on the whole practical problem we face and produce a much better Act of Parliament than the Bill represents at the moment.