European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

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.

[Henry Smith (Crawley) (Con)]

My hon. Friend sets out the very essence of the Bill. This is not about a sudden change, but about transposing EU law into British law and evolving as we move forward as a sovereign nation.

[Mr Jenkin]

Absolutely right. The point is that we want that smooth transition; the only reason there is a possibility that there will not be one is the intransigence so far of the European Union. The paradox is that there are people who were very much in favour of Britain’s membership of the European Union who clearly think that the European Union will inflict the most ghastly cliff edge on our country. I think better of the EU. There are sensible people in the European Union who will not want tariffs, or tariff barriers, or new and unnecessary restrictions on trade between our two countries. They will not want to de-recognise so many of the mutual recognitions we already have. They will want to secure the jobs of their people and their countries just as much as we want to secure ours.

Even if we leave without an agreement, I think the biggest challenge is being ready in time. My biggest concern is that there are still parts of Government that do not seem to be preparing quickly enough. On the question of Her Majesty’s Revenue and Customs and the customs arrangements, are those at HMRC spending money on what we need in place in case there is no deal? I keep hearing that they are waiting for instructions, as though there will be something much clearer for them to work against, but we have to face the fact that we might well leave without a comprehensive settlement of some kind, and that our customs arrangements and all the other arrangements will have to be ready in time. This Bill enables us to do that.

I will end my speech a little early by emphasising that a vote against this Bill would be a terrible disappointment, and I would not take such a vote at face value, as I do not think that the vast majority of hon. Members in this House want to create a chaotic Brexit. They will be voting for a tactical defeat, because they know that they cannot succeed in this debate.

We should concentrate on the fact that we have far more in common with our European partners than divides us. That will be the same after we have left the European Union as it is now. I look across the Chamber at the hon. Member for Ipswich (Sandy Martin); we stood together in one of the glorious Suffolk churches of East Anglia last night and sang Beethoven’s ninth symphony and the words of Schiller’s great poem, the “Ode to Joy”. Incidentally, it was composed more than 100 years before the European Union was invented and has absolutely nothing to do with political and monetary union under the European Union. We are leaving the European Union; we are not leaving Europe.

--- Later in debate ---

[Wayne David]

There are many speakers, as we have heard, and I am sorry, but I would rather press on.

In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.

[Mr Jenkin]

In the last Parliament, the Public Administration and Constitutional Affairs Committee took evidence on this matter from the same academic who advised the Scottish Parliament, and he was very clear that the powers being reserved under these proposals were only ever notionally devolved, because they were of course reserved by virtue of our membership of the European Union. This is not a power grab; the Government’s objective is to make sure that the devolved Administrations finish up with more powers than they had before.

[Wayne David]

We are not talking about notional, theoretical powers; we are talking about actual powers on the statute book, and about whether one institution or another is able to enact laws according to that legislation.

There is a big difference between what was in the White Paper and what is in the legislation before us. What is more, undemocratic changes have been introduced without even a modicum of prior discussion, let alone negotiation, with the devolved institutions. This power grab by the Conservative Government is an affront to the devolved institutions, but it is also a slap in the face of the people of Scotland and of Wales. As Carwyn Jones, the First Minister, said in the Welsh Assembly in July, there is a popular mandate for what the Welsh Government are arguing. To quote him exactly:

“The 2011 referendum…saw a large majority vote in favour of giving this National Assembly primary legislative powers”,

but the European Union (Withdrawal) Bill is

“an attempt to take back control over devolved policies…not just from Brussels, but from Cardiff, Edinburgh and Belfast.”

In his letter to Members of Parliament, dated 7 September, the First Secretary of State said that the arrangement I have described was a “transitional arrangement”. My question is: how long is this transitional arrangement for? How long is the period to which we are referring? How long is the rapid period mentioned in the explanatory memorandum? Is it one month, one year, 10 years, 20 years—how long? This Bill is an undemocratic blank cheque that, if passed, will give unprecedented powers to this Government.

Unfortunately, it is difficult to avoid the conclusion that the Bill has as its prime objective not so much withdrawing Britain from the European Union as concentrating as much power as possible in the hands of a feeble minority Government, headed by a caretaker Prime Minister. Under the cloak of leaving the European Union, the Government seek to emasculate this House and centralise power in their own hands. If the Government were solely concerned about leaving the European Union, there are other ways that it could have been done—other measures could have been put forward—but, no, they chose this particular route. Rather than looking forward to a new and positive relationship with the European Union, this Bill takes us back to the days when the UK was totally London-orientated and inward-looking. That is why I will vote against it, and why I believe that is the right thing to do.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

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

[Mr Howarth]

I will answer precisely that point before I conclude, but if the right hon. Gentleman will forgive me I will do so in my own particular way.

The second test to apply is fairly straightforward: are we heading into economic disaster? At this stage, we are unable to say. We do not know what the trade terms will be and we do not know how they will affect businesses and workforces. All of that is to be negotiated. If, at the end of the process, all those questions have been answered to my satisfaction and that of my constituents, I could vote, provided I am given the opportunity, to leave the European Union. At this stage, however, there is such a lack of clarity about where we stand and where we will get to that I am not prepared to give that commitment. I cannot say to my constituents that everything they voted for will not happen, on top of which it will be economically disastrous for us.

I say to the Government: get on with the negotiations, but we want the opportunity to say this is not right for our constituents. I will vote for the amendments tabled by the right hon. and learned Member for Beaconsfield and my right hon. Friend the Member for Normanton, Pontefract and Castleford to make sure that we have exactly that opportunity.

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

I have often taken part in such debates as these and felt rather in the minority in opposing a new European treaty, and I wonder whether I am still in a minority in the House today, as it probably has more remainers than leavers in it, which rather colours the judgment of those taking part in the debate.

[Anna Soubry]

Oh move on, for God’s sake!

[Mr Jenkin]

I just put that forward as a problem. I believe as passionately in my case as my right hon. Friend does in hers. I sympathise and understand, but we have to accept that the country voted to leave. The one thing we know about how people voted—whether it was for this deal or that deal, whether they believed or disbelieved this or that piece of propaganda—is that they voted to leave the EU. That is the one thing it said on the ballot paper. I cannot understand how anyone can come to the House and say, “Well, there might be circumstances in which I will not respect that decision”, as the right hon. Member for Knowsley (Mr Howarth) just did. That is what it amounts to.

[Peter Kyle]

Sir Winston Churchill said that the role of an MP was to put country first, constituency second and party third. Does the hon. Gentleman accept that, if the Government come back with a bad deal, allowing it to go forward would put none of those three first?

[Mr Jenkin]

That brings me to my next point. This debate is rerunning many of the arguments during the referendum campaign. The remain case was premised on the idea that it is a horrible, cruel world out there, that we cannot survive outside the EU, that it will be completely disastrous and that unless the EU give us permission and lots of help and support and agree to a whole lot of stuff we would like, we will be on our own in the cold. You know what? It is not true. Most countries are not in the EU and they are fine. This debate sometimes loses sight of that.

I wish to speak in favour of clause 1 standing part of the Bill. I agree so much with my right hon. Friend the Member for Wokingham (John Redwood). This is the most important Bill since we joined—more important, in fact, because after 45 years of membership it is so much more significant than it was. The principle of democracy is that Parliament legislates and Ministers obey and implement the law. The problem with the EU is that it turned our Ministers into legislators. They go to Brussels, sit in council, legislate and then bring back fait accompli legislation that is then imposed on this House. The 1972 Act is the greatest Henry VIII clause that has ever existed, and there is something a bit inconsistent —I understand why they are saying it—in complaining about Parliament not being treated properly, given that the whole principle of our membership of the EU requires the removal of the House’s right to make the laws of this country.

[Chris Bryant]

I note that the hon. Gentleman just said that it was wholly inappropriate for Ministers to go to Brussels and bring back a fait accompli. In relation to the EU negotiations, would it not be wholly inappropriate, therefore, for Ministers to go to Brussels, bring back a fait accompli and not give Parliament a proper opportunity to say, “You know what? You’ve got this wrong. You’ve got to renegotiate.”?

[Mr Jenkin]

I completely agree with the hon. Gentleman. The House should have the right to accept or reject the deal, and it will—it will have the right to reject or accept the withdrawal agreement and implementation Bill; but that will not change the decision to leave the EU. That decision has been taken.

I turn to the date of our exit. The referendum said leave. We were all told that we had to use article 50. Article 50 says on the tin that it takes two years maximum. The date is already fixed. There is no choice about the date. The date has to be in the Bill, otherwise we will weaken our negotiating position.

[Several hon. Members rose—]

[Mr Jenkin]

I will make my point and then give way.

The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.” That will not put us in a very strong negotiating position.

[Mr Grieve]

I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?

[Mr Jenkin]

My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. [Interruption.] It was my right hon. and learned Friend who used the word “hypothesis”.

The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Jenkin]

I will, but I have been told to take very little time.

[Anna Soubry]

I am very interested in my hon. Friend’s point about the fact that the date should have been in the Bill. It was an important point, so will he tell us why he did not table an amendment to insert the date?

[Mr Jenkin]

Would I be telling tales out of school if I said that I had thought about it, and discussed it? In fact, there was plenty of friendly discussion about it, but in the end the Government decided the matter for themselves, and I support the Government. I think that, given that we are in a slight minority in this Parliament and we have to deliver a very difficult Brexit and take part in difficult negotiations, it is incumbent on all Conservative Members to support the Government whenever we can.

[Vicky Ford (Chelmsford) (Con)]

I completely agree with a vast amount of what my hon. Friend has said. Article 50 sets the date, but it also sets the process, and the last part of the process is a vote in the European Parliament. As I recall from my time in the European Parliament, it often asks for a little bit extra at the last minute. My concern about hard-wiring the date is that it makes it more difficult for our Government and the other 27 national Governments to give that little bit of extra time should it be needed. It loses our flexibility rather than giving us more. That is my only concern.

[Mr Jenkin]

Unfortunately, even the European Parliament cannot change the exit date. It would have to be agreed by all the other member states. To predicate our negotiating position on our ability to persuade the 27 member states—and the Commission and the negotiating team in Brussels—to extend the date would be completely wrong.

Any Members who intend to vote against this date must be really confident that they can change a date that has already been set by the European Union treaties. The whole point about the deal/no deal scenario is that—as I have already said to the right hon. Member for Knowsley—either we accept the deal, and the House votes on it, or there is no deal. That is the choice that is available to the House. The House cannot veto Brexit—[Interruption.] I wish to conclude my speech.

Any Members who voted for the European Union (Notification of Withdrawal) Bill are obliged to support the amendment, because that is the date for which they implicitly voted when they voted for the Bill, and for a two-year period. Any Members who voted for article 50 but now do not wish to fix the date are open to the charge that they do not actually want us to leave the European Union—[Interruption.] Let me say this to my right hon. and learned Friend the Member for Beaconsfield. He has suggested that if we do not have a deal we will be jumping into “a void”, and that fixing the date will constrain our negotiations and disenfranchise Parliament. I respect the sincerity of my right hon. and learned Friend’s passion, but he calls the cut-off date barmy when he voted for that date by voting for the article 50 Bill. This amendment rumbles those who have not really accepted that we are leaving the EU.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

My hon. Friend knows that I share his fundamental beliefs about the need for us to leave the European Union, but is there not merit in the suggestion of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that we need not have a fixed date? After all, our own negotiators might wish to have an extension; this is curtailing the flexibility and room for manoeuvre of our own negotiators. My right hon. and learned Friend has proposed an ingenious and commendable solution: that we write into the Bill the date, but we create exceptions for circumstances in which the negotiators might need it. I urge my hon. Friend, and all my hon. Friends who share my view on the EU, to reflect carefully on the suggestion made by my right hon. and learned Friend; it is a commendable one and it requires careful reflection.

[Mr Jenkin]

I am still seized of the truth that if we beg the EU to extend the time because it has run us up against the timetable—after all, it is the EU that is refusing to negotiate on the substantive issues at the moment, not us—that is the position and responsibility it must face. We should be clear and strong that if the EU does not reach an agreement with us by a certain date, we are leaving without a deal. That would put us in a stronger negotiating position than ever.

[Tom Brake]

I am very pleased to start by saying that, irrespective of what might or might not be in this Bill, I would, of course, not want us to leave the EU. I must say that there have been some rational speeches from the Conservative Benches, in particular those of the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve). I also saw a significant and rational nodding of heads on the Government Benches during their speeches; I hope that as this debate develops many more of those rational Conservatives will be willing to speak out. I think that, like me, they believed before the EU referendum that leaving the EU would cause us significant damage and that they continue to do so to this day. As they have seen the Brexit negotiations proceeding, I suspect their view has been reinforced. I hope we will hear many more outspoken speeches from Conservatives.

The debate has inevitably been peppered from the Government Benches—the fourth row, referred to frequently—with the usual clichés from the usual suspects about the impact of the European Union: comments about EU bureaucrats plundering our fish and the secrecy that applies. The hon. Member for Stone (Sir William Cash) is no longer in his place; I do not know whether he has ever participated in a Cabinet committee meeting, but if he is worried about secrecy, he could, perhaps, do so—he will then see how clear that decision-making process is.

There have also been many references to the importance of the sovereignty of this Parliament, which is of course important, and unfavourable comparisons have been drawn with the EU, along with a complete disregard of how that body conducts itself through the Council of Ministers and the role of Members of the European Parliament. The only thing that has been missing from the debate has been a reference to the EU stopping children from blowing up balloons. No doubt if the Foreign Secretary had been here, he would have been able to add to that list of clichés about the impact of the EU, and it is a shame that he is not here to reheat that particular canard.

I make no apologies for seeking to amend the Bill and supporting a large number of amendments tabled by Members on both sides of the House, although I do not have much confidence that the Bill can be knocked into shape.

--- Later in debate ---

[Mr Jenkin]

The right hon. Gentleman completely misrepresents what I said, which was a hypothetical. Does he really believe that the British people are going to change their minds? It may be a pious hope but, if anything, leave would win by a far bigger majority if there was another referendum.

[Tom Brake]

The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there.

I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily.

As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal.

If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be.

I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far.

If we have a vote on clause 1 stand part, I will certainly be ensuring—

--- Later in debate ---

[Mr Grieve]

The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.

[Mr Jenkin]

It’s not meant to!

[Mr Grieve]

My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights—does it not?—the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.

--- Later in debate ---

[Mr Leslie]

I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.

[Mr Jenkin]

I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.

[Mr Leslie]

Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.

--- Later in debate ---

[Paul Blomfield]

It is a pleasure to follow the right hon. Member for Chesham and Amersham (Mrs Gillan), who has made some thoughtful and sensible points on her amendments, which we would support. I rise to speak to amendment 278, and to the consequential amendments 279 to 284, which would allow for transitional arrangements within the existing structure, rules and regulations. I will also speak to our amendment 306, but I will return to those separate issues later.

Amendment 278 follows on from our earlier debate on clause 1. It brings into even sharper focus the issue of the Court of Justice of the European Union’s jurisdiction during a transitional period. As I said in the previous debate, and as my hon. Friend the Member for Nottingham East (Mr Leslie) said earlier in this one, there can be no transitional period on current terms, as the Prime Minister wishes, without that jurisdiction. The Florence speech has been much quoted already, and I am sure that that will continue. Let me refer briefly to it one more time. The Prime Minister obviously made the speech after the Bill had been published, but perhaps its early drafting did not have the opportunity to accommodate the emphasis that she has placed on the

“two important steps, which have added a new impetus”

to the process.

She said of the second of those steps:

“I proposed a time-limited implementation period based on current terms, which is in the interest of both the UK and the EU.”

She was accepting the case made by business and trade unions for an effective transitional period and, crucially, again making the point that this should be on current terms.

As I said in the earlier debate, we were pleased that the Prime Minister had caught up with Labour on that position. However, seven weeks on from the Florence speech, the Government have failed to reflect the ambition that the Prime Minister had at that time in any of the amendments to the Bill. They came up with the bizarre amendments that we debated in relation to clause 1, but they failed to address that ambition, so we have helpfully stepped in to fill that gap with amendments 278 to 284. The amendments would mean that, in relation to the jurisdiction of the Court of Justice, exit day should come at the end of the transitional period. The reason is simple: without acceptance of the continuing role of the Court of Justice during the transition, the idea that the implementation period, based on current terms, could happen in the way that the Prime Minister described is frankly delusional.

[Mr Jenkin]

I get the feeling that the cart is coming before the horse here. No transitional implementation has yet been agreed. It has to be part of a deal, and it would be a mistake for the House to start putting things into the Bill in the expectation of certain things that may or may not happen. That is why my right hon. Friend the Secretary of State for Exiting the European Union announced a separate Bill to implement any agreement, which is when such things will be dealt with. This Bill is much simpler than the Opposition would like it to be.

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[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.

[Anna Soubry]

No, no.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Grieve]

My hon. Friend is absolutely right. He has correctly analysed what the issues are and the categories of rights on which we probably ought to focus.

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

Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes—one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what Supreme Court judges are looking for?

[Mr Grieve]

If I understand my hon. Friend’s question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out—the pressure will build for this—to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children’s rights. We will need to debate that.

[Mr Jenkin]

But it will create uncertainty.

--- Later in debate ---

[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a pleasure to follow the hon. Member for Sheffield Central (Paul Blomfield). At the outset, I would like to thank hon. Members from right across the House for their contributions to today’s debate, whether in speeches or in amendments. The Government will approach the Bill in the spirit of collaboration, and I certainly welcome the constructive contributions and diligent scrutiny hon. Members are rightly providing today. I shall seek to address clause 5, and the Solicitor General will address schedule 1 a bit later in the debate, to make sure we dwell adequately and with due consideration not only on the provisions of the Bill, but on the various issues and amendments, for which I am grateful to hon. Members, that have been raised.

Clause 5 serves two key strategic objectives: taking back democratic control over our laws and making sure we leave the EU in a way that facilitates a smooth Brexit and minimises legal uncertainty. The Bill aims to provide that the laws which apply immediately before exit day will continue to apply in the same way after we leave. Of course, the act of leaving the EU in itself means it is inevitable that some things will not and cannot stay the same. The changes made by clause 5 relate to certain aspects of EU law which are no longer appropriate, or which will not make sense when we leave the EU because we will then cease to be under the obligations that apply to us as an EU member state. The provisions are therefore essential.

Clause 5(1) ends the supremacy of EU law in relation to new law from the date of exit. That is crucial if we are going to give effect to the mandate from the referendum. At the same time, clause 5(2) makes sure that EU law passed before exit still applies as before, for the sake of legal certainty. That is important for mitigating the risks of legal uncertainty that are inevitable and inherent in departure from the EU. The rest of clause 5 reinforces those critical objectives, including by removing the instrument of the charter on fundamental rights as part of domestic law. I want to come on to address that in detail.

[Mr Jenkin]

May I refer my hon. Friend to clause 5(2)? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), in his rather amazing speech which I think we all found very illuminating, said that this was a completely new principle to be applied in British law. Is it not just a translation of an existing principle in EU law into United Kingdom law for the purposes of a smooth Brexit? Is it not, in fact, less exceptional than being a member of the European Union and allowing a court in a wholly different jurisdiction to impose itself on parliamentary sovereignty?

[Dominic Raab]

I thank my hon. Friend for his intervention and I will come on to address very carefully the speech made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I agree that there is an inherent sense that, as we move to change, things are not going to be exactly as they were before. I want to draw a very important distinction. We are leaving the EU and taking back control over our laws and the way we make our laws, so that Members across the House can exercise proper democratic control. At the same time, the substantive law—the rules and the principles—will remain the same, because of the snapshot we are taking on exit day and retaining in UK law, thereby avoiding the putative legal cliff-edge.

--- Later in debate ---

[Joanna Cherry]

I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on 5 December, because with all due respect, a list prepared by a Minister does not have the same weight in a court of law as a codification that has been signed up to by a number of countries.

It is not just my view and that of the hon. Member for North Down (Lady Hermon) that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government’s approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.” This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.

[Mr Jenkin]

I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.

[Joanna Cherry]

If I may say so, I think that that is to misunderstand. I am not responsible for the false assurances that were given about the opt-out when this country signed up to the charter. They did not come from the Scottish National party, and I think it is fair to say that they have now been disowned by the Labour party. In reality, the incorporation of the charter in our law has meant enhanced direct effect. I use the term “direct effect” rather than “direct applicability” because people are able to take an action and refer to those rights in the course of their action, as we saw in the Supreme Court case last summer when a gentleman named Mr Walker was able to realise equal pension rights for his husband, despite a loophole in UK law about the equalisation of pension rights for gay couples, because the EU charter closed that loophole.

I want to give the House a brief list of some of the rights involved. We have heard a lot about data protection, and I know that others will want to address that issue, but it is worth remembering that the right to be forgotten on Google and other search engines—which I believe is of interest to some Members—stems from the EU charter. There is more to it than that, however. Let us look at the words of others, rather than simply accepting the argument on my say-so.

When the Exiting the European Union Committee took evidence on these matters, Caroline Normand, the director of policy at Which?, told us that

“the Charter of Fundamental Rights contains some really important principles for consumers. The particular ones that I would highlight are the right to a high level of human health protection, which is article 35, and a right to a high level of consumer protection.”

She referred to the case last May—it has already been mentioned today—when the large tobacco companies brought judicial review proceedings challenging the regulations that introduced standardised packaging for tobacco products. The High Court dismissed the case, referencing the public health and other rights set out in the charter. That is a pretty meaningful right for public health in these islands.

Dr Charlotte O’Brien, a senior lecturer at York Law School, told the Select Committee that she had produced an approximate count for the number of times the charter was referenced in case law. She found that the charter was cited in 248 cases in England and Wales, 17 in Northern Ireland, 14 in Scotland and 98 in the European Court of Human Rights, and in 832 EU judgments, 515 of which were from the Court of Justice. Her point was that that is an awful lot of cases that would have to be read differently, and it is not clear how they are to be read differently.

--- Later in debate ---

[Mr Jenkin]

It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?

[Sir William Cash]

The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.

I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to do so would be totally unacceptable. I refer to what I have alluded to already: the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but:

“No authority was cited to support them, and no detailed reasons were given.

I cannot for my part accept that my colleagues’ observations are correct... To my mind, it has been convincingly shown”—

by Professor Goldsworthy, one of the greatest authorities on this subject—

“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it… What is at stake”—

said Professor Goldsworthy—

“is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 4th sitting: House of Commons
Monday 4th December 2017 Commons Chamber

[Ian Murray]

We have just had a bombshell there; the hon. and learned Lady has just told us that she wants to stay part of the UK. That is what we can surmise from that intervention, and I completely agree with her that the best way for Scotland, and Wales, to thrive is to stay part of the UK. Indeed, in my view, the best way for the UK to thrive is to stay part of the single market and customs union of the EU, and all of these issues would therefore fall away, because we would not need clause 11, because we would not need the framework in place to be able to put UK frameworks together, because we could stay within the frameworks that are already in place. It is strange that we will spend a significant amount of time in this Chamber, in the Committee Rooms of this House, and in all the devolved Administrations discussing frameworks that we already currently have.

The Government strategy is that they want every benefit they currently have from the EU while not being a member of the EU. I suggest that if the Government want to achieve that, they should stay in rather than wrench themselves out. That would resolve all the problems, and would have saved the Prime Minister lunch this afternoon, because they would have had a very straightforward solution to their problem.

I will not press my amendment to a vote if those on my Front Bench are going to press amendment 42, because they are very similar in nature. My Front-Bench colleagues’ amendment is much more technically efficient than my proposal, and we know that technically ineffective amendments tend to be criticised. I will therefore support my Front-Bench colleagues’ proposal, and finish by saying that the simple solution for Northern Ireland, Scotland and Wales would be to stay in the single market and the customs union.

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

Sir David, thank you for calling me at this stage of the debate.

To be fair to the hon. and learned Member for Edinburgh South West (Joanna Cherry), I think she was chafing against the Act of Union, which, as she correctly described, established a unitary market. The Act of Union banned tariffs between Scotland and England and established the free movement of goods.

I commend the use of the word “trust” by the hon. Member for Edinburgh South (Ian Murray), which he used regularly, but I question whether he is in fact doing much to promote trust, as this debate needs to do. He talked about heading into a constitutional crisis, but I think he did so to create a sense of distrust.

I was also disappointed when the hon. Gentleman questioned the motives of my hon. Friends who represent Scottish constituencies. One could suggest that people in glass houses should not throw stones. I do not know which part of the Labour party he represents, but they come in diverse characters these days. Is he in that part of the party that supports its leadership, or the part that is trying to get rid of it? Is he part of Momentum or against it? I do not know whether he is living in fear of deselection. The one thing we do know about him, however, is that he is subject to the Labour Whip. It is not unusual for members of a governing party to be subject to a single Whip, but I think he undervalued the highly significant speech made by my hon. Friend the Member for East Renfrewshire (Paul Masterton).

My hon. Friend made it clear that his support for the Government on this issue “should not and must not be taken as an acceptance of clause 11 as it stands.” That demonstrates the fact that, while my hon. Friends representing Scottish constituencies take the Conservative Whip, they demonstrate an independence of mind and work with their colleagues in the Scottish Parliament, whom I met recently on a visit to the Scottish Parliament, along with Scottish Conservative and Scottish National party Members, to discuss clause 11. My hon. Friend also made it clear that the legislative consent motions might not be granted for clause 11 as it stands.

We all accept that the Gina Miller case made it clear that the requirement for legislative consent motions in the devolved Parliaments would not effectively block the passage of the legislation in this House, but it has created some constitutional tension. My hon. Friend pointed out that the progress of the Bill is likely to be somewhat impeded by the absence of legislative consent motions from Holyrood and Cardiff, and from Northern Ireland if the Assembly is operating there. This is an important message. It demonstrates that the devolution that Labour said it was promoting when it gave us devolution has turned into a very different constitutional reality—

[Kevin Brennan (Cardiff West) (Lab)]

There was a referendum. It was the will of the people.

[Mr Jenkin]

I am sorry, I did not realise that I was saying anything particularly provocative—[Interruption.] Yes, there was a referendum, but the constitutional reality has turned into something much more federal in character than the proponents of the original legislation told us it would be.

I do not want to detain the Committee for long. I have chosen to speak in the debate because I am the Chair of the Public Administration and Constitutional Affairs Committee, which is looking at the relationships between the four Governments and Parliaments of the United Kingdom. We issued a report on inter-institutional relations earlier this year, in the previous Parliament, and we issued an interim report just last week on clause 11. That followed meetings that we held in Edinburgh, which will be followed by further meetings in Cardiff and Edinburgh, and if we can get to Northern Ireland, we will. What was striking about the meetings in Cardiff and Holyrood was how little this kind of interchange takes place, how slenderly we know other individuals in other Parliaments throughout the United Kingdom, and how there are no formal mechanisms for proper exchange between the four Parliaments of the United Kingdom. What a shortage that is!

This debate is less about leaving the European Union and more about devolution. It is about reconciling competing narratives of what devolution in the United Kingdom has come to mean, and about dealing with the lack of trust we have inherited from the present devolution settlement. The debate about clause 11 reflects that.

Usually, when devolved powers are going to be legislated for in this House, there is a great deal of discussion, large numbers of papers are produced in all parts of the United Kingdom and eventually, a piece of legislation emerges with a degree of consensus around it. This Bill emerged in much shorter order. We are told that there was very little discussion about the contents of clause 11. This underlines how, under strain, the reflex of our constitutional habits is not to consult. We in the United Kingdom Parliament, and those of us who support United Kingdom Governments, in the plural, have to recognise that there is a serious gap in our capability to discuss, explore, befriend and understand each other throughout the United Kingdom.

[Ian C. Lucas (Wrexham) (Lab)]

I am interested in the point the hon. Gentleman is making, but is it not the case that the UK Government consulted very little with Members of all parties across the House during the preparation of this Bill after the referendum? Does he agree that that was a massive mistake?

[Mr Jenkin]

The hon. Gentleman has been in this House for quite some time, and he should be used to that by now. That is the way in which Governments have tended to behave. Yes, we have tried to improve things. We now have pre-legislative scrutiny, for example. I did not vote for the Lisbon treaty, which put article 50 into the treaties. I did not vote to have a two-year time limit on the negotiations on leaving the European Union. I suspect that the hon. Gentleman did vote for the Lisbon treaty, however, so I think he should take more responsibility than I should for the time constraints under which we are now operating.

[Ian C. Lucas]

What is unusual about this Bill is that it followed a referendum that means we are going to leave the European Union, and there are splits in both the major parties on this issue. The right approach would have been for the Government to consult much more widely on how this legislation should be taken forward. The reason that it is in such a mess at the moment is that the Government are allowing a small coterie to dominate the conduct of the process, rather than consulting the House as a whole.

--- Later in debate ---

[Mr Jenkin]

I do not accept that the Bill is in any kind of a mess. I think that we ought to keep the effects of clause 11 in proportion. From the perspective of the Government—and, in reality, from the perspective of what actually happens in Scotland, Wales and Northern Ireland—the clause is a status quo measure. The powers, while not reserved by the Scotland Acts, were reserved by virtue of our membership of the European Union, so there is no power grab. If the hon. Gentleman wants me to, I can quote from the evidence that the Committee received from Mr Nigel Smith. He was the chairman of Scotland Forward, which ran the pro-devolution campaign in 1997. He stated:

“Nobody who voted for the Scottish Parliament exactly twenty years ago need worry—there is no ‘power grab’ underway.”

We did receive countervailing evidence. Incidentally, the report we published last week is an interim report. We produced no conclusions or recommendations, but we wanted to surface and discuss many of the pieces of evidence that we have received and make them available for this debate.

--- Later in debate ---

[Pete Wishart]

The main conclusion of Alan Page’s work, with which I am sure the hon. Gentleman is more than familiar, is that clause 11 proposes a hierarchical version of devolution whereby this place has all the central powers. I am surprised that the hon. Gentleman does not know that, because that was the main conclusion. Clause 11 creates a hierarchy of devolution under which, for the first time, this place has control in asserting its sovereignty, and Scotland would fall far under the radar. I am surprised that he is not familiar with that work.

[Mr Jenkin]

The hon. Gentleman will be surprised no longer, because my next point is that the manner of clause 11 reflects a lack of sensitivity on these matters. Clause 11 suggests that there will be no time limits on the retention of powers and no process for the discussion of how powers should be handed over. There is only consultation through the JMC, which meets sporadically, and there is no statement of long-term aims for where the powers should eventually lie.

Returning to the hon. Member for Edinburgh South and his comments about trust, we should be asking how we can build some trust. The great gap in the devolution settlement, as it exists, is that it is based on a binary notion of what devolution means: power is either reserved or devolved. In fact, most decentralised systems of government have shared competences. The EU itself operates substantially on the basis of shared competences and, paradoxically, it is leaving the EU that is exposing the flaws in the devolution settlement. There are so few mechanisms for dealing with shared competences—virtually none.

[Martin Whitfield (East Lothian) (Lab)]

Does the hon. Gentleman agree that one of the functions or strategists that can deal with this matter is the Joint Ministerial Committee?

[Mr Jenkin]

I do agree, but the number of times that the JMC and its sub-committees have met formally is few. Months can go by with no meetings, and then a Whitehall Minister will say, “Ooh, we should have one.” That does not inspire confidence. Perhaps the JMC should have fixed diarised formal meetings every year, because there would be things to discuss whether or not a Minister of the Crown here actually thinks there might, and that would give people an opportunity to get to know each other better.

[Martin Whitfield]

Does the hon. Gentleman also agree that diarised meetings and more interaction might lead to confidence and agreement between the Governments?

[Mr Jenkin]

I could not agree more, but I hope that the hon. Gentleman will acknowledge—I am not being accusatory—that this has been a failure of previous Governments as well as this one. When the Select Committee visited the Welsh Assembly and the Welsh Government during the 2010 Parliament, First Minister Carwyn Jones actually complained to us, perhaps with more rhetoric than was justified, that he had been trying to get a meeting with Prime Minister David Cameron for months and months—more than a year—but had not been allowed to have one. We need fewer excuses for people who want to be destructive and more confidence that meetings will take place and that they are valued by all parties.

[Stephen Kerr]

Is it my hon. Friend’s view that the mechanisms that determine such communication should be established by statute?

[Mr Jenkin]

I have an open mind on that, and I have fiddled around with my amendments, which have not appeared on the order paper today, to see whether we can find a way of doing that. I do not know whether this is the right Bill through which to do that—probably not—but such things are statutory in other decentralised systems. There clearly needs to be something much more formal, but we should perhaps experiment without statute first to see whether it is necessary. My Committee took evidence from one civil servant and a former Speaker’s Counsel who said, “It has worked very well for the past 300 years, so why do we need statute?” but that does not recognise that we now have competing political centres with, I repeat, competing narratives about what the constitution actually is. SNP colleagues talk about the natural sovereignty of the Scottish people, but the legal constitutional reality is that the Queen in Parliament in Westminster is still absolutely sovereign. Those things need to aired, discussed and understood.

[Deidre Brock]

Further to that point, the Scottish Government have consistently made it clear that they cannot support the Bill as it stands, so if the UK Government do not vote for amendment 72 tonight, would that not render the Sewel convention completely pointless and not worth the vellum it is written on?

[Mr Jenkin]

I hear the hon. Lady’s impatience, but we need to be more patient. We are not completing the consideration of this Bill this evening, and I am encouraged by the work done by the First Secretary of State, who chaired the last meeting of the Joint Ministerial Committee and seemed to be drawing people together around some agreed principles for how joint frameworks might be approached. We all want to see that, so let us hope that that work will continue.

[Kevin Brennan]

The hon. Gentleman was mildly critical of the Welsh First Minister for using rhetoric, but the rhetoric in that relationship came from Prime Minister David Cameron, who said that he wanted to follow a respect agenda but then failed even to have a meeting with the First Minister. May I also correct the hon. Gentleman on something? Ministers actually know each other very well at the moment and met extremely frequently prior to the introduction of this Bill. The problem is that UK Ministers ignored the advice that they were getting from both Scottish and Welsh Ministers, which was that something like clause 11 would be utterly unacceptable.

[Mr Jenkin]

The better we know each other, the more we will forgive each other for the rhetoric. That is what I found when my Committee went to Edinburgh on a semi-formal visit. The hon. Member for Inverclyde (Ronnie Cowan) and I, as Chairman, had some open and frank discussions about some difficult issues with people I had never even met before, but we of course found that there was lots of common ground.

My next point is that there are no inter-parliamentary arrangements. We had to scrabble around for a bit of budget to do the trip. We found it in the end, but there needs to be a habit of people in this Parliament interacting much more openly and frequently with our counterparts in the other Parliaments. For example, the Environment, Food and Rural Affairs Committee and the Business, Energy and Industrial Strategy Committee have competences that are shared by Committees in different Parliaments. Those Committees should be meeting regularly together. Another suggestion worthy of consideration is that there should be some formal inter-parliamentary council in the United Kingdom to allow representatives of all four Parliaments to meet on a regular basis on some kind of neutral ground.

[Vernon Coaker]

The Good Friday/Belfast agreement set up many inter-parliamentary institutions, both east-west and north-south. The hon. Gentleman talked about trust. How does he think that trust has been helped by what we saw this morning, with the Government saying there would be a deal on the border in Ireland and the Prime Minister then having to come out of lunch because the DUP either had not been consulted or had not agreed to the arrangements? What does it do for both Unionism and nationalism in Ireland when such things happen? Frankly, it looks as though the Government are in chaos, do not know what they are doing and, in pursuing it, are undermining the whole peace process in Northern Ireland.

[Mr Jenkin]

Sir David, am I to be tempted to enter a debate on today’s negotiations, or should we wait until tomorrow, when perhaps someone will come to tell the House something about what has been going on?

A formal inter-parliamentary council that meets on a regular basis would be another opportunity for parliamentarians to understand each other better.

[Kevin Brennan]

Will the hon. Gentleman give way?

[Mr Jenkin]

I must press on, but I will give way once more.

[Kevin Brennan]

Does the hon. Gentleman acknowledge that there is an inter-parliamentary council? The British-Irish Parliamentary Assembly, which obviously includes the Government of the Republic of Ireland, provides an opportunity for parliamentarians to get to know each other. Perhaps it would be useful if, as the Chair of the Select Committee on Public Administration and Constitutional Affairs, he were to be a member of that Assembly. On today’s issues, does it not show that we have a Prime Minister who is in office but not in power and a DUP that is in power but not in office?

[Mr Jenkin]

I am endeavouring to raise the tone of this debate, and obviously I am not succeeding with certain Opposition Members.

My final suggestion goes to the heart of what clause 11 is about. I mentioned that, in previous discussions about devolution, there has always been a Silk commission or a Calman commission. There has always been a body that has deliberated, drawn out the more controversial politics and tried to make the discussion more objective. I wonder whether there is a case for the Government convening some kind of standing commission, under the scrutiny of a joint group of parliamentarians, to dispassionately look through the powers returning from the EU that intersect with the devolved Parliaments and Assemblies in order to determine what powers should lie where, both immediately as we leave the European Union and in the longer term.

At the moment, I am afraid my criticism of clause 11, as it stands, is that it does not give any assurance about process or much assurance about consultation, time limits or sun-setting. It just sets out this static proposal.

[Gerard Killen (Rutherglen and Hamilton West) (Lab/Co-op)]

Will the hon. Gentleman give way?

[Mr Jenkin]

I will not give way again. I have said everything I want to say.

My Committee is continuing its inquiry. If any right hon. or hon. Member wants to have their say, they can always submit evidence to our Committee.

[Chris Bryant]

On a point of order, Sir David. I am not sure whether you were in the Chamber earlier, but Mr Speaker made it clear when asked that the Prime Minister intended to make a statement to the House tomorrow about the negotiations and discussions she has been having with the DUP and Europe.

I gather that Downing Street is notifying the press, not this House, that there will be no such statement tomorrow and that the Prime Minister does not intend to make a statement. Is there any way you can make sure that Mr Speaker is aware of this and, for that matter, that Downing Street is fully aware that if we are taking back control—I thought that was the whole point—this House should be kept fully and appropriately informed of the negotiations at every stage?

--- Later in debate ---

[Anna McMorrin]

I am afraid the Chair disagreed with the hon. Gentleman. [Interruption.] Well, the hon. Gentleman should speak to the Chair and to other Conservative Members about that.

The situation is further complicated by the fact that, in a number of EU policy areas, the UK Government are in fact acting as the Government of England.

[Mr Jenkin]

I am most grateful to the hon. Lady for giving way—I know she is trying to get on with her speech.

Yes, we published the conclusions of the last Joint Ministerial Committee in our report because they, I think, do show the good faith of the Government. However, I also understand why people have doubted the good faith of the Government—because clause 11 is so bald, if I may say so. We need reassurances around clause 11 that do not necessarily change the substance of it but give assurance that there will be a process and a timetable. That would certainly be a good step.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Leslie]

It is almost an Alice in Wonderland “down the rabbit hole” concept: the notion that we are passing an Act that hands powers to Ministers to amend not just any other Act of Parliament, but the Act itself. It is completely ridiculous. I know that Conservative Members will say I am making the point because I am sceptical about Brexit or something, but this is a constitutional issue. It is about ensuring that Parliament is sovereign, and that Members of Parliament can override the executive and curtail excessive behaviour. I shall be astonished if clause 9(2) is still there after Royal Assent, because if the House of Commons does not deal with it, the other place will certainly have to do so.

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

I have some sympathy with the points that the hon. Gentleman is making, but why did he not raise these objections when his own party was passing legislation that could be self-amending in exactly the same way, without a sunset clause—for example, the Scotland Act 1998?

[Mr Leslie]

I am not sure whether there is anything comparable to the sweeping nature of the policy scope of a Bill that says that order-making powers can include powers to modify the Act itself.

[Mr Jenkin]

There is the Scotland Act!

[Mr Leslie]

If that is indeed the case, two wrongs do not make a right, but I do not think that any other provision is quite as extensive as this. The hon. Gentleman’s loyalty to the Government knows no bounds—he has to come to their defence, because it is important for someone to do so—but I think that, in this particular instance, even he may be slightly embarrassed by quite how far Ministers have gone.

Clause 7(1) states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate”.

The term “appropriate” is entirely undefined, and it is the only condition imposed on the Minister’s desire to address “deficiencies” in the law. The House of Lords Constitution Committee has said:

“This application of a subjective test to a broad term like ‘deficiency’ makes the reach of the provision potentially open-ended.”

The Government tabled amendment 391 to try to ameliorate some of the concern about that, but it barely constitutes a concession. It merely requires Ministers to make explanatory statements that provisions are “appropriate” in order to justify the order-making power. It is because it is so broad that I tabled amendment 65, which would at least shift the subjective threshold from “appropriate” to “necessary”. I believe that requiring Ministers to feel that a regulation is necessary would present them with a stronger test and a higher threshold. It would allow them to retain fairly broad powers, but I think that it would provide an extra safeguard. A Minister may think that something is appropriate without having to justify it, and I feel that we should expect more in a Bill such as this. The Constitution Committee has also said:

“We proposed that ‘a general restriction on the use of delegated powers’ could be achieved using ‘a general provision … placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework’”.

I followed that advice by tabling amendment 65.

Clause 7(2) implies that the scope of the Henry VIII powers are not exhaustive at all.

That subsection begins with the phrase:

“Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law”

does x, y and z, and it goes on to set out a series of particular conditions.

The right hon. and learned Member for Beaconsfield (Mr Grieve) has also spotted this issue in his amendment 1, and this caveat does not have to be limited to the exceptions set out in clause 7. Again, that provision is too broad and gives too much power to Ministers. Ministers might well say, “Well, it’s not our intention to go beyond the list of prescribed areas in clause 7”, but the Bill as drafted does not constrain their successors; as I have said, there will, of course, always be further Ministers after the current ones have moved on.

--- Later in debate ---

I do not wish to see my hon. Friend the Minister dragged to the Dispatch Box to answer in such a situation and, ultimately, I think that as the statutory instruments go through we will see growing confidence in the process. That will help the Government; it will help the House; and it will help the country to get through this enormous, colossal mountain of SIs.

[Mr Jenkin]

May I take it therefore that my right hon. and learned Friend is offering his services on this committee?

[Mr Grieve]

I am already the Chairman of another Committee of Parliament, and I think it might be undesirable to burden me with extra work. Indeed, there are plenty of other people in this House who are capable of doing this work. Obviously, if somebody wanted to ask me, I would give it consideration, but I am always conscious of being rather too thinly spread as it is, so I do not put myself forward.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

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

[Yvette Cooper]

The right hon. and learned Gentleman is exactly right, and that is why we have a cross-party interest in these issues. Not only is there no trigger on the face of the Bill—clause 9 will still allow Ministers this huge concentrated power to go ahead and implement the withdrawal agreement without Parliament’s agreement—but there is also a second difference, certainly for me in what Ministers have set out so far, about how a meaningful vote should take place. I want to come on to that as well.

New clause 3 says that Parliament will not yet give the Government permission to use secondary legislation to implement the withdrawal agreement, and that instead the Government must set out their plans for primary legislation to implement the withdrawal agreement. If secondary legislation is needed at that time, as part of the implementation process, those powers should be taken in the withdrawal agreement Bill—the second Bill—so that Parliament is not just handing over a blank cheque, but is deciding what powers are needed and making sure that the proper scrutiny and checks and balances are in place at that time.

I do not think this is really a controversial proposal. It is basically saying that Parliament should hand over no more power to the Executive than it needs to and should not hand over power to the Executive until it needs to and until it knows what is going on. New clause 3 also has the effect of requiring a meaningful vote in primary legislation on the withdrawal agreement before it can be implemented. That is not really a controversial proposal either. It simply says that we should have a proper vote on the most important thing to pass through Parliament in a generation—and a meaningful vote in primary legislation, as is fitting for something so important—and that we should do so before and not after we give Government the powers to start implementing it.

Amendment 7, which was tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), has broadly the same effect. Rather than removing the powers from clause 9, it simply says that they cannot be used until a statute or primary legislation has been passed supporting the withdrawal agreement. Again, that means that Parliament does not blindly hand over powers to the Executive in a trusting way without knowing what the consequences will be or what the agreement looks like.

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

The whole point of this Bill is that it is taking back power to this country and this Parliament, so that we can decide for ourselves what will happen. All the significant powers in the Bill are subject to the affirmative resolution and those that are not will now be subject to a sifting committee. We are recovering from a situation where, as members of the European Union, we had handed over all these decisions, lock, stock and barrel, to the European Union, so the Bill is a massive improvement, and to dress up this attempt to reverse Brexit as an argument in favour of parliamentary sovereignty is nothing but cant.

[Yvette Cooper]

Oh my, what Stalinism is this?—that any attempt to disagree with the way in which this Bill is drawn up is somehow a betrayal of Brexit! What rubbish! How insecure are Members who object to any changes in the Bill, if they cannot see that it is Parliament’s job—a job that they argued for when they stood up and tried to defend parliamentary sovereignty—to take some responsibility by scrutinising legislation and proposing amendments to it? That is all we are doing now. We are putting forward an amendment to the way in which the Brexit process—the withdrawal process—should take place. The idea that this somehow undermines the referendum decision is just a load of rubbish and the hon. Gentleman well knows it, and if he had any better arguments, he would put them, rather than using something that is so ridiculous.

--- Later in debate ---

[Yvette Cooper]

My hon. Friend is right, and that again shows the importance of having these commitments in the Bill, so that there can be no doubt and no possibility of the Government using clause 9 to start implementing an agreement on which there has been no meaningful vote.

[Mr Jenkin]

Can the right hon. Lady explain how the timing will work? If there is to be legislation to approve a withdrawal agreement before March 2019, what happens if the agreement is reached too late to allow that legislation to go through all its stages—[Interruption]—or is this a plan to delay the Brexit date?

[Yvette Cooper]

I thought part of the way through the hon. Gentleman’s intervention that he was finally coming up with a sensible point. I have no control over the timing of the Government’s negotiations; I hope that they and the EU will get on with this quickly, because in particular we need the transitional agreement pinned down as early as possible, as businesses need certainty—and they need that as much in my constituency as in the hon. Gentleman’s. So I hugely hope there will be plenty of time for all these debates to take place. In the event that, against the Government’s will—they have said they do not want this—it ends up being a late deal, Parliament should have the opportunity to ask the Government to extend article 50 for a couple of months, to be able to implement it properly. In fact, the Government will have to do that anyway, because they will not be able to bring clause 9 powers through fast enough not to have to do so.

--- Later in debate ---

[Mr Jenkin]

I am listening carefully to what the hon. Gentleman is saying, but is it really that unreasonable that the Government might need to avail themselves of these powers in clause 9 while the withdrawal and implementation Bill is proceeding through the House of Commons? If the timetable is compressed, that Bill would not be on the statute book and the powers there would not be available. So clause 9 is necessary for that purpose. Of course the withdrawal and implementation Bill could circumscribe the powers in clause 9 and indeed close them off once that Bill is on the statute book.

[Matthew Pennycook]

The hon. Gentleman has pre-empted a point I was going to come to. In the scenario he gives, there is no need for the timetable necessarily to be compressed. If it were squeezed, what would that say about the role that Parliament will have on the withdrawal agreement and implementation Bill? In his scenario, there would also be no need for the secondary legislation in this Bill, which could be included in a similar form in the withdrawal agreement and implementation Bill, when we would have a better idea about what it will be needed for and can more adequately circumscribe its scope. As for this idea that we have a withdrawal agreement and implementation Bill making its way through this House at the same time as secondary legislation implementing elements of that agreement hang over this place, such an approach would create serious confusion.

--- Later in debate ---

[Matthew Pennycook]

The hon. Gentleman is right that the European Union (Notification of Withdrawal) Act 2017 and the article 50 notification gave effect to their own timetable. That is why it is so important that we have transitional arrangements on current terms that allow us flexibility to negotiate the final deal. I will return to this point later, but there is no way that, before we leave in March 2019, we will have agreed the future relationship. We will have agreed heads of terms at best.

[Mr Jenkin]

Will the hon. Gentleman give way on that point?

[Matthew Pennycook]

If it is all right, I am going to make a bit of progress because many Members wish to speak.

As I have said, I do not think there is a need for the powers in clause 9 because secondary legislation of a similar type could be included in the withdrawal agreement and implementation Bill. Why the need for such powers? We do not think there is any justification for them. I look forward to hearing the Minister’s justification for why the clause needs to stand part of the Bill but, unless amendment 7, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), is passed, the Opposition will vote for the clause to be struck from the Bill.

If clause 9 remains part of the Bill at the end of the parliamentary process, its constitutional potency and scope must be highly circumscribed. I do not intend to dwell extensively on what limits should be placed on the clause 9 power because, in general, the same arguments apply as those that I set out at length in the Committee’s deliberations on clause 7 yesterday. I will say, though, that amendment 27 to clause 9, similar to our amendment 25 to clause 7, would constrain the capacity of the powers in clause 9 to reduce rights or protections.

The powers in clause 9 are different from the powers in clause 7 in a particular way: namely, the extraordinarily wide power explicitly provided for by clause 9(2) gives Ministers the power by regulation to modify—a term that clause 14 makes clear covers amendment and repeal—the Bill itself once enacted. As my hon. Friend the Member for Rhondda (Chris Bryant) pointed out on Second Reading, there is no example throughout the history of the 20th century of a Bill that has ever sought to do that—not in time of war and not in time of civil emergency. In fact—this is a point that my hon. Friend continues to make, and should—every single emergency powers Act has specified that there should not be a power in such legislation for Ministers to alter primary legislation. We do not believe the power is justified, and amendment 30 would limit the potency of the delegated powers in clause 9 by preventing them from being used to amend or repeal the Act itself.

Let me turn briefly to the purpose, scope and limits of clause 17, which gives powers to Ministers to make any consequential provisions that they consider appropriate in consequence of the Act and to make any transitional provisions that might be needed as a result of the Bill coming into force. In contrast to our position on clause 9, we acknowledge that there is an established precedent with regard to consequential and transitional provisions, so we will not be voting against clause 17 standing part of the Bill, but it must be circumscribed.

A clause as widely drawn as clause 17—it is arguably the most widely drawn of all—set in the context of a Bill of such constitutional and legal significance that it covers almost every element of the UK’s withdrawal from the EU and, it could be argued, nearly every facet of our national life, means that the power to make consequential provisions under clause 17 is not as tightly limited as it might be in other pieces of legislation. As such, it inevitably throws up the possibility that the powers in subsections (1), (2) and (3) of clause 17 could be used to make changes to vast swathes of secondary and primary legislation, including legislation in this Session up to May 2019.

When he responds, the Minister will no doubt cite other statutes that provide for not dissimilar powers, but having looked closely at a fair number of them, I am not convinced that any are so widely drawn as this one, and none are contained in legislation as constitutionally significant as this Bill. The Hansard Society was right to refer to clause 17 as a “legislative blank cheque” for the Government, and the power must be restricted. Amendment 29 would achieve that aim by removing subsections (1), (2) and (3) of clause 17. If the Government believe that that is the wrong way to restrict the sweeping powers in the clause, they can of course come forward with their own suggestions, but the principle of circumscribing the powers in the clause must be accepted.

--- Later in debate ---

[Mr Grieve]

In a moment. I do not wish to take up too much of the Committee’s time.

My point brings me to the specifics of clause 9, which is an extraordinary and wide power to remove us from the EU by statutory instrument, and moreover—this is the most telling point—to ask the House to give the Government effectively a blank cheque to draft statutory instruments to achieve something when at the moment we do not know what that is.

[Mr Jenkin]

I am listening very carefully, but clause 9 is not about implementing our leaving the European Union; it is about implementing a withdrawal agreement. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) did not vote for article 50, but my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) did. That is when he voted to leave the European Union and that is decided, so he is incorrect to say that clause 9 is deciding when or how we leave the European Union.

[Mr Grieve]

If I may say so, I think my hon. Friend has misunderstood what I said. The fact is that clause 9 provides a power, exercisable once this Bill comes into force before exit day, to implement something when we do not at present know what that is. Therefore, it is a very strange thing to ask Parliament to sign off.

--- Later in debate ---

[Mr Jenkin]

I have listened to this entire debate with close interest. I think that we are all agreed that we want an orderly process for leaving the EU, which means a sensible withdrawal agreement along with a clear and detailed commitment to an EU-UK trade agreement and a period of implementation, but I also think we all agree that if no satisfactory agreement arrives, we still all voted to leave the EU. Well, we nearly all voted to leave the EU: I respect my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), but he voted against the triggering of article 50, as did some others. Those of us who voted to trigger article 50 voted to leave on 29 March 2019.

[Stephen Kinnock]

Article 50 clearly states that an extension can be requested, so when we voted to trigger it, we voted to trigger a clause that included the possibility of requesting an extension.

[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.

--- Later in debate ---

[Mr Jenkin]

As I say, it is not something that we can bank on.

May I just deal with this question of what is a meaningful vote? I cannot find anything clearer than the ministerial statement that was issued this morning. It says that

“the Government has committed to hold a vote on the final deal in Parliament as soon as possible after the negotiations have concluded.”

It continues:

“This vote will take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms for our future relationship. The Government will not implement any parts of the withdrawal agreement—for example by using clause 9 of the European Union (Withdrawal) Bill—until after this vote has taken place.”

That seems to provide the assurances that my right hon. and learned Friend is looking for and that the Minister of State, Ministry of Justice has repeated already from the Dispatch Box.

[Anna Soubry]

Does my hon. Friend agree that, to be meaningful, there has to be some time between that vote and such time as we leave the European Union? That is the whole point. A meaningful vote comes before something that is basically to be rubber-stamped. That is the whole point of “meaningful”. When does he anticipate that we will have that vote?

[Mr Jenkin]

The right hon. Lady knows as well as I do that the intention is to try to conclude an agreement by October 2018, but, again, there is no guarantee of that fact, in which case the resolution will be tabled soon after 2018. May I just point out that amendment 7, proposed by my right hon. and learned Friend the Member for Beaconsfield, is trying to create a meaningful vote by turning this resolution of both Houses into a statute?

[Mr Grieve]

Well, we have been promised a statute.

[Mr Jenkin]

Yes, a statute has been promised, but not as a means of second-guessing the negotiations. At what stage in the passage of the statute does my right hon. and learned Friend expect the Government to use that moment and say, “Oh, well, they haven’t agreed with this bit of the agreement; we’ll have to go back.” Is it during the passage of the statute that the negotiations would have to continue? Making this decision a statute does not alter the discussion about a meaningful vote.

[Mr Grieve]

I am most grateful to my hon. Friend for giving way. I think that he may misunderstand the position. The House will have an opportunity, at the time that it is asked to move a motion approving the deal, to express its view, but it will also have an opportunity to express its view during the passage of the statute. Both those are necessary pre-conditions constitutionally for our leaving the European Union. I cannot help that; that is just how it is. Let me reiterate: the purpose of my amendment is to prevent the powers in clause 9 being used until this key statute has been enacted. That is the purpose.

[Mr Jenkin]

Actually, that option is not available, because article 50 has a deadline, and when that deadline runs out, we leave. There is no requirement for a withdrawal agreement or a statute for the United Kingdom to leave the European Union.

[John Redwood]

Does my hon. Friend agree that this is a process completely driven by Parliament? We have an Act of Parliament to send the letter, an Act of Parliament proposed now to withdraw and then another Act of Parliament to implement any agreement. The whole thing is completely under parliamentary sovereignty. Will he also confirm that we must have the date in the Bill to ensure legal continuity, as, under international law, we are leaving at the end of March because of the treaty?

[Mr Jenkin]

It is wishful thinking that the deadline will be extended. Where I disagree with my right hon. and learned Friend the Member for Beaconsfield is over the fact that, somehow, he thinks that the withdrawal agreement is necessary for us to leave the European Union and that the statute for the agreement is therefore necessary. Unfortunately, it is not. He voted for article 50, which triggered the process of leaving. Everything else is for our domestic legislation. Let us hope that there is a withdrawal agreement, but, actually, this Bill is what is necessary to provide legal continuity. Unfortunately, requiring another Act of Parliament before provisions of this Bill come into effect is just muddying the waters.

As the Minister has already demonstrated very forcefully, this is not an effective amendment. If my right hon. and learned Friend wants to table a different amendment, as colleagues almost seem to be suggesting, that might be a way to resolve this. I beg my right hon. and hon. Friends on this point. There is a summit tomorrow. This is not the moment to try to defeat the Government—[Interruption.]

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order.

[Mr Jenkin]

This is not the moment to try to defeat the Government, when there is another opportunity to amend the Bill at a later date.

[Angus Brendan MacNeil]

On a point of order, Mrs Laing. Are summits now to be sovereign over Parliament?

[The First Deputy Chairman]

That is not a point of order.

[Mr Jenkin]

This is not the moment to try to defeat the Government, when there is another opportunity to amend the Bill at a later date, if a satisfactory discussion cannot be held. My right hon. and learned Friend the Member for Beaconsfield has been very conciliatory.

[Anna Soubry]

We have been speaking for months.

[Mr Jenkin]

Well, continue the discussions.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Jenkin]

No, I will not give way. I keep hearing my right hon. Friend saying, “It’s too late.”

[Anna Soubry]

I did not say that; I have never said that.

[Mr Jenkin]

I have heard my right hon. Friend saying that.

--- Later in debate ---

[The First Deputy Chairman]

The right hon. Lady knows that that is not a point of order. It is a point of debate. The hon. Member for Harwich and North Essex (Mr Jenkin) is about to conclude his speech, and the more that other hon. Members shout at him and interrupt him, the less chance other Members will have to speak.

[Mr Jenkin]

I will give way to my right hon. Friend the Member for Wantage (Mr Vaizey).

[Mr Vaizey]

My hon. Friend’s remarks fill me with hope. He seems to accept that this debate is about a point of principle, rather than—as some might think—delaying Brexit, which is absolutely not what it is about. Does he agree?

[Mr Jenkin]

I think that some people in this House might be trying to delay Brexit, some of whom may be supporting the amendment of my right hon. and learned Friend the Member for Beaconsfield, but I perfectly accept his bona fides and those of my right hon. Friend the Member for Wantage. I simply conclude that there is an opportunity for the discussions to continue. It is not necessary to bring this matter to a vote this evening.

[Chuka Umunna]

I will try to do this in three minutes, and I have three principal points. I do not want to speak for long because the points I will make in support of amendment 7 and new clause 3 have already been made very well by the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve), my right hon. Friends the Members for Normanton, Pontefract and Castleford (Yvette Cooper) and for Leeds Central (Hilary Benn), and others.

My first point is that if taking back control does not mean passing amendment 7, I do not know what does. We were told that we were leaving the European Union to reassert parliamentary sovereignty, and it seems to me that that is exactly what amendment 7 would do. Clearly, the Government are refusing to accept it. We have heard nothing from the Dispatch Box that suggests that they are prepared to concede on this, forcing the right hon. and learned Member for Beaconsfield to press the amendment to a vote. That brings me to my second point.

The right hon. and learned Gentleman and others who are supporting his amendment have been attacked, as he mentioned earlier, not just in this place, but beyond. They have been called mutineers and saboteurs, and have faced all the rest of the abuse. Ministers and other Tory Members of Parliament in particular who have been attacking them have absolutely no right whatever to do so because the reason that the right hon. and learned Gentleman tabled his amendment was that he felt that it was in the national interest.

Now, the Brexit Secretary has voted against his party over 90 times. The International Trade Secretary has done so 19 times; the International Development Secretary, five times; and the Leader of the House, who was here earlier, seven times. Actually, look around the Government Benches. The right hon. Member for Wokingham (John Redwood) has voted against his party 73 times; the hon. Member for Basildon and Billericay (Mr Baron), 64 times; the hon. Member for Harwich and North Essex (Mr Jenkin), 95 times; and we cannot, of course, forget the hon. Member for Stone (Sir William Cash), who has voted against his party more than 100 times. So none of these people can now lecture people who are seeking to do the right thing in the national interest on this amendment. None of them can lecture people about rebelling on this or any other matter.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Mr Leslie]

Governments would normally be expected to have information and facts, with evidence being collected and presented and with an assessment made based on information that has been analysed and digested in a professional way, but it appears that, although we were told they exist, the impact assessments do not actually exist but are sectoral analyses. What is the difference between an impact assessment and a sectoral analysis? Well, we have been discussing that for quite some time.

Returning to EU retained legislation, the right hon. and learned Member for Beaconsfield rightly pointed out that we have lived with important legal understandings, such as on equalities law and environmental law, for a number of decades. Those understandings have been tenets of our expectations of the civilised society in which we live. Of course, they will now be transferred from European law into UK law. If they had originated in this House, they would have been enacted in primary legislation and any changes would have had to be made through primary legislation. But the Government’s proposal is to take this new category of EU retained law and bring it into UK law, and it will not have the same status as primary legislation. In many ways, it will be repealable or amendable, often by secondary legislation—by statutory instrument. This is not a point about Brexit; it is about the process of transposition. It is important that the public know what is going on when we are doing this. If a transfer is taking place, information should be set out in the explanatory notes, not just about the technical details, but about the weight that those legal rights will have once they come back into UK law.

There are a number of other aspects to this—

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

The hon. Gentleman is making an interesting and relevant point, although it is of course true that all this legislation came in via secondary legislation in the first place and Parliament will have considerably more control over the secondary legislation that amends it than we currently have over the method that created it. I would imagine, as I am sure he does and the Government do, that Acts of Parliament will become more important, particularly if we want to make sure that this is not challengeable in the courts, as secondary legislation is much more vulnerable to challenge through the courts than primary legislation.

[Mr Leslie]

Yes. Although we disagree on many things, I think we can agree that if we are going to do this exercise, it needs to be done thoroughly and robustly, making sure that the intent of Parliament and the laws we are transposing are robust enough to withstand the test of time. Having explanatory statements to accompany those is an important development that has helped us in our legislative process recently. If we are going to have a sifting committee—it is not really a sifting committee; the procedures committee will be doing this—looking through all these statutory instruments and picking out which ones it thinks should not be passed through the negative procedure, this explanatory process ought to be in place to help hon. Members figure out which of these hundreds or even thousands of aspects of legislation are important enough to flag up to hon. Members more widely. That is a small point but it needs making. Other issues arise relating to “tertiary” legislation and the powers the Bill is giving to agencies and regulators to make, or to amend or remedy, laws. Again, I would like these things to be flagged up in plain English, wherever possible, so that parliamentarians can know about them. In essence, new clause 21 is about transparency, clarity and shining a light on this complicated bandwidth of activity that is about to hit all hon. Members, and that is important.

The only other point I wanted to make on this group—

--- Later in debate ---

[Mr Jenkin]

Clause 13 is confined to the publication and rules of evidence. The schedule itself is about publishing what is retained direct EU legislation. Can my right hon. and learned Friend describe to me what latitude the Government would have that could do so much damage, or be so capricious, within the powers of the Bill, and can he give an example of what would be so damaging and outrageous?

[Mr Grieve]

As I have explained, this is a Henry VIII power, so within the period in which this power is operational—this is on my reading, but perhaps my hon. Friends on the Treasury Bench will correct me—a Minister of the Crown may, by regulation, essentially change the way in which retained EU law is handled by requiring

“judicial notice to be taken of a relevant matter, or…provide for the admissibility in any legal proceedings of specified evidence of…a relevant matter”.

That is a very extensive power. Effectively, it gives a power to rewrite how legislation should be interpreted.

[Mr Jenkin]

Give us an example.

[Mr Grieve]

The examples could be endless—[Interruption.] Well, if there is an established rule by which, for example, EU law is currently being applied, a Minister could say that, in future, that should be disapplied because notice should not be taken of its previous application.

[Mr Grieve]

I do actually agree with the hon. Lady and, I am afraid, disagree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Of course, membership of the EU implies a pooling of sovereignty, but the decision-making process by which law has been created in the EU is one that is done not by faceless bureaucrats, but by the Council of Ministers. There is absolutely no doubt about that at all—

[Mr Jenkin]

In secret.

[Mr Grieve]

I do not wish to be dragged off into some new polemical argument. My hon. Friend says in secret, but, if I may say, we are signed up to hundreds of treaties other than that with the EU in which we pool our sovereignty to come to common positions with our fellow treaty makers.

--- Later in debate ---

[Paul Blomfield]

No, I do not, and it is unfortunate that some people have been characterised in that way, as the right hon. and learned Member for Beaconsfield (Mr Grieve) and others were by some of their colleagues last week. If I can now make some progress—

[Mr Jenkin]

Will the hon. Gentleman give way?

[Paul Blomfield]

Well, while we are talking about extreme voices, I am happy to give way.

[Mr Jenkin]

There are right hon. and hon. Members who say they want to honour the result of the referendum, but who actually want the European Union to carry on controlling our laws. I call them Brexinos—people who want Brexit in name only. There may well be a majority of them in this House, but that would not be respecting the result of the referendum, would it?

[Paul Blomfield]

The hon. Gentleman is a good example of those who see conspiracy in any corner. I note the article he wrote in The Guardian on 8 October under the title “It’s a sad truth: on Brexit we just can’t trust the Treasury”. He went on to say:

“There is no intrinsic reason why Brexit should be difficult or damaging, but the EU itself has so far demonstrated it wants to make it so…it has co-opted the CBI…the City and…the Treasury to assist.”

Well, I think that the majority of Members take a more rational view.

The decision taken in 2016 was not a mandate for driving over a cliff edge with no deal or for having no transitional arrangement in place. It was not a vote for leaving all the agencies and partnerships from which we have benefited over the years and could continue to benefit or for turning our back on the single market, walking away from the customs union or—I say this with an eye on the contribution made in the last debate by the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), who is paying more attention to his phone than to the debate—turning our back on the Court of Justice of the European Union.

--- Later in debate ---

[Mr Baker]

The hon. Lady is trying to pre-empt some of my remarks. If she will bear with me, I will come to that.

A crucial point is that the Bill does not determine whether the UK leaves the EU; that is a matter of international law under the article 50 process. However, it is important that we have the same position in UK law that is reflected in European Union treaty law. That is why the Government have signed these amendments, and I was glad to do so.

I can assure the Committee we would use this power only in exceptional circumstances to extend the deadline for the shortest period possible, and that we cannot envisage the date being brought forward. As my right hon. Friend the Prime Minister has said many times, we and the EU are planning on the UK leaving the European Union at 11 pm on 29 March 2019.

[Mr Jenkin]

I apologise to the Committee for having had to be in the Liaison Committee for the last couple of hours and for missing much of the debate. I thank my hon. Friend for accepting these compromise amendments. The Government are, in fact, accepting a very significant limitation on the powers they had in the original draft of the Bill. If we are interested in the sovereignty of Parliament, we are interested in limiting the room for Government to set arbitrary dates without any controls over them whatever. That is what existed in the Bill before. There is now proper control by Parliament of the date in the Bill.

[Mr Baker]

I am grateful to my hon. Friend. I would also like to say thank you to him for the role he has played in bridging the spectrum of opinion on this issue.

--- Later in debate ---

[Mr Baker]

I am most grateful to my right hon. and learned Friend. I know he is going to take this matter up further with my hon. and learned Friend the Solicitor General. I did actually just make two points, but perhaps I structured them ambiguously.

The third point is that in the event of a strike-down there would be no existing power under which fresh regulations could be brought forward, so it would be necessary to bring forward a fresh Act of Parliament or to rely on the remedial order-making power within the HRA itself. I should say that the remedial order-making power within the HRA was not designed to be the default means by which incompatible legislation is remedied or to deal with the policy changes that could be required.

The remedial order-making power may only be used if there are compelling reasons for doing so and it is targeted at removing the identified incompatibility. If wider policy change were needed following a finding of incompatibility, a fresh Act of Parliament would be the only means of doing that and we could be left with damaging holes in the statute book unless and until such an Act was passed. That is why the Government concluded that converted EU law should have the status of primary legislation in relation to the HRA, and that is why the Government will not be able to accept the two amendments.

[Mr Jenkin]

I wish to pick up on the important point raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). For the avoidance of doubt, will the Minister clarify that it is not the Government’s intention to set up retained EU law in UK statute in a manner that would encourage a UK court to strike down another primary statute? If that is the intention, may I suggest it might be something the Government will have to look at?

[Mr Baker]

My hon. and learned Friend the Solicitor General has just confirmed to me that we do not want that to happen. I am sure that that will be given further consideration, along with the issue of general principles that my right hon. and learned Friend the Member for Beaconsfield has raised.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Grieve]

May I gently say to my right hon. Friend that if his analysis were accurate, no statute would ever have been enacted by Parliament, at any stage in its history, providing additional protections to people’s rights over and above the common law? That must be the end point, because the whole point about the Human Rights Act was that it added to protections enjoyed under the common law and did so in a way that was compatible with this House’s sovereignty. All I am saying to Ministers is that given that, for 40 years-plus, we have been involved in an international organisation that in practice has entrenched certain rights, it must now be for Ministers to come forward with a sensible proposal as to how those rights, in so far as the Government consider that they are in fact rights, will be protected in the future.

I am afraid that I disagree with my right hon. Friend the Member for Wokingham (John Redwood). Nice as it is to rely upon the Executive’s good will, 21 years in this House—heaven knows, my right hon. Friend has been here far longer—persuades me that that good will is not something that we should always rely on. I am afraid that I have seen a number of instances—particularly when I was in opposition, I might add—where it did not seem very wise to do so.

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

I agree with my right hon. Friend the Member for Wokingham (John Redwood) that in the end, because we are a sovereign Parliament, we are the only guarantor of our people’s rights. However, I am interested in what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is saying about this matter, because the other danger that is lurking here is the fact that our courts may well decide that they have an obligation to maintain EU law even in the face of an Act of Parliament, and might strike down an Act of Parliament because, from reading the Bill, they see it as their obligation to retain certain principles of EU law. I like the declaration of incompatibility that my right hon. and learned Friend is suggesting as a very suitable compromise that enshrines what we have.

[Mr Speaker]

Order. This, if I may say so to the hon. Gentleman, is a mini-speech, with more emphasis on the speech than on the mini.

--- Later in debate ---

[Mr Leslie]

My hon. Friend absolutely nails the point and brings it home. She knows a great deal more about such issues than I do. The Government of the day do have a say on the rules and can sometimes effect reforms or block them.

[Mr Jenkin]

rose—

[Antoinette Sandbach (Eddisbury) (Con)]

rose—

--- Later in debate ---

[Mr Leslie]

I will take one last intervention, but then I must conclude.

[Mr Jenkin]

rose—

[Mr Leslie]

No, I have to conclude.

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[Joanna Cherry]

Yes. What is sauce for the goose is sauce for the gander. It would not be very consistent if I thought that the British Executive should not get sweeping powers but the Scottish Executive should. All these arguments about curtailing Executive power apply to all Governments in these islands, not just to this Government. At the moment—my hon. Friend the Member for North East Fife (Stephen Gethins) will address these matters later—the Scottish Government are getting precious few powers in relation to these matters, and that is a grave concern. However, others will address that later.

The Solicitor General said he had listened with care to what was said about this issue in Committee, so what will Ministers do about it? Have they spoken to the judiciary about this? Have they taken on board the judiciary’s concerns about the scope of discretion granted to them and their fear of that, given recent politically motivated attacks on the judiciary? Have Ministers taken on board the concern expressed on both sides of this House and by many organisations outwith it about the broad scope of the powers currently afforded?

As I said, I have no doubt that these concerns will be raised in the Lords, but now is the time for the Government to tell this democratically elected and accountable House what they are going to do to circumscribe the exercise of Executive power in this Bill.

[Mr Jenkin]

I will speak only briefly to somewhat lament the fact that we have not made more progress on this clause 11 issue. Let me explain the background. The Public Administration and Constitutional Affairs Committee has taken an interest in this matter. We have taken an extensive interest in the inter-institutional relations between the different Parliaments of the United Kingdom and the different Administrations of the United Kingdom, which is a very undeveloped part of our constitution. We have the legal framework, but we do not have the practices, the culture or the institutional underpinning. The debate about the legislative consent motions in relation to this legislation has shown that up to a degree.

I pay tribute to my right hon. Friend the Member for Ashford (Damian Green), recently departed from the Government, who played a crucial role in making considerable advances on the question of how the legislative consent motions in support of this proposed Act of Parliament should be supported by the devolved Parliaments. It seems to me that the process has stalled somewhat, and it is unfortunate that we do not have the Government or others tabling amendments at this stage of the scrutiny of the Bill, when some of us had hoped that that would be the case. I am bound to say that it may reflect the fact that there is not yet a consensus, and it would be more important to reach a consensus on this matter than to table some amendments that do not reflect a consensus.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I totally understand the wish, perhaps, to have had more discussion or debate before bringing amendments, but is that not an argument for putting back this debate, rather than that these amendments should come up in the Lords, where not just Scotland’s governing party but all Scottish MPs cannot take part in the debate?

[Mr Jenkin]

I do wish that the Scottish National party would take up its option of positions in the other place, so that it could—

[Dr Whitford]

MPs.

[Mr Jenkin]

No—so that the SNP could be represented in the other place, because I have no doubt that this matter will be addressed there. But I agree; I think that is unfortunate and that it would have been preferable for it to have been developed here.

[Dr Whitford]

Even if the SNP were in the Lords, it is the representatives here who are elected, and representatives from all Scottish parties are disfranchised by the amendment’s not being moved today.

[Mr Jenkin]

I accept that. Whatever compromise or proposals emerge in the other place, we can either debate them, vote on them and accept them, or we can debate them, vote on them, reject them and send back our own proposals to the other place at that point, so this House will have an opportunity to debate this very fully—just as fully as on Report.

This is, ultimately, a question of trust. We need to build up trust. Whatever the future holds for our United—or disunited—Kingdom, there need to be relationships of trust between the four Parliaments of these islands, the four Administrations of these islands, to enable us to make our way in the world as effectively as possible after we have left the European Union. That trust is still somewhat lacking in those relationships, and there may be one or two who want to foment distrust for their own political reasons. That makes getting this sorted out in an amicable way more challenging, but all the more necessary.

[Martin Whitfield]

Is not trust based on experience, and is not the experience that we have witnessed over the past few weeks disappointing in that building of trust?

[Mr Jenkin]

We have come a long way since the Government first published the Bill in draft last summer, when there were very peremptory conversations with the devolved Administrations and they felt very unconsulted about the Bill that had been published. There has been quite a lot of trust building and discussion, and the meetings of the Joint Ministerial Committee, which has discussed these matters and produced joint memorandums, shows that the trust is capable of building. I do think we have gone backwards a little bit in recent weeks, but I hope that the work that my Committee is doing will help. My Committee is going to Cardiff at the beginning of February and then we will be making an official visit, following an unofficial visit late last year, to Edinburgh, to build up these relationships and these understandings between the different Parliaments and the different Administrations. I do hope that in the end we can arrive at the right destination.

[Stewart Hosie (Dundee East) (SNP)]

I welcome the Committee Chair’s taking his Committee formally and informally to Edinburgh and I agree with what he says about trust, but I hope that he agrees with me and my party that trust would be ably demonstrated if the Government had tabled an amendment, committing to deliver all the 111 powers to the devolved Administrations.

[Mr Jenkin]

Trust is about what is offered to the other party. In this case, the Government have been consistently misconstrued. Given the drafting, clause 11 can be read as though the Government intended to hold on to the 111 powers for all time, withholding them from the Scottish Government, but the Government have repeatedly said that that is not the case. My Committee has also consistently said that the Government’s intention is that the devolved Administrations and Parliaments should finish with substantially more powers as a result of leaving the EU than they had before.

[Lady Hermon]

We have not had a functioning Assembly in Northern Ireland for a year—since January 2017. How exactly does the hon. Gentleman and his Committee expect to build up trust with the Northern Ireland Assembly? How is that going?

[Mr Jenkin]

It is very problematic. My Committee has repeatedly attempted to make an official visit to the Province, but that has not been regarded as expedient at this time. However, I sometimes run into the hon. Lady and I talk to other elected representatives of the Province; I hope that there is, at least within this House, trust and understanding between the democratically elected representatives on this matter. However, I invite the hon. Lady to a further conversation offline. We are continuing our inquiry and our work.

I make it clear to my party’s Front Benchers that I expect amendments to be tabled to clause 11 to clarify how long the powers should exist. Why is there not a sunset provision at the end of clause 11, so that it is seen clearly as a temporary expedient and not a final destination? Why is there not some qualification to the powers that have been retained, to show that they are for a particular purpose rather than just a blanket withholding?

As I said in Committee, it was instructive that even the work commissioned by the Scottish Parliament demonstrated that most of the powers being recovered from the EU—those with relevance to the UK single market, for example—are naturally reserved powers. We are dealing here with only a relatively small proportion, albeit on significant matters such as the environment, farming and fisheries.

This is an important test for the relationship between Whitehall and its counterparts elsewhere in the United Kingdom—and, indeed, with this Parliament, because the relationship between the Parliaments is just as undeveloped, possibly even less so, than the relationship between the Governments. The Governments have to work together, and on the island of Great Britain we have a single civil service that naturally works together. But the idea of the Parliaments of the United Kingdom working together is a completely alien concept and has not yet come into our political idiom at all.

Our Committee continues to work on the issue. I hope that we shall make some radical recommendations to help us learn from other, decentralised systems of government in other countries. This is in the DNA of their constitutions. We need to develop the same facility, so that after we leave the European Union and the powers have been devolved, the four parts of the United Kingdom work effectively and harmoniously together for the common good and the future of our country.

[Anna McMorrin (Cardiff North) (Lab)]

The biggest scandal about clause 11 is that the UK Government know that it is completely unacceptable; they are just not brave enough to admit it. Ministers, Tory MPs and civil servants have privately—and publicly, sometimes—acknowledged how extremely ill-advised it is to remove the power of the devolved Governments over devolved areas. This UK Government committed to introducing amendments on Report to address this, but where are they? Where is the Government’s acknowledgement that they have got this wrong?

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[Stephen Doughty]

I should like to speak to amendment 5, a cross-party amendment tabled in my name and those of other hon. Members. I should also like to indicate my strong support for the Opposition Front-Bench amendment 3. In principle, I also support many of the other amendments in this group, although not, I am sorry to say, the Government amendments, which do not go far enough towards addressing the concerns that have legitimately been raised by the devolved Administrations in particular. It is always a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who has made some excellent points, as has my colleague and friend, my hon. Friend the Member for Cardiff North (Anna McMorrin), who shares many of my deep concerns about this part of the legislation, which have not been addressed.

I hesitate to raise this point, but it is odd that we are discussing devolution and Brexit in this, the most important piece of legislation to face the United Kingdom and the devolved nations since the second world war, without the Secretaries of State for Scotland, Wales and Northern Ireland being present in the Chamber with us. I cannot see any of their junior Ministers here either. Perhaps they all have other important business to undertake. That seems rather remiss of them, given that we are considering such serious matters. I raised a point of order with you about this the other day, Mr Speaker, as did other Members. Much of the concern about this part of the Bill relates to promises and assurances that were given by the Secretary of State for Scotland, yet he is not here to account for himself. I have a great deal of respect for him, but these are serious issues that have been raised in good faith, and Ministers should be here to hear our concerns, and those of the devolved Administrations, if we are truly supposed to be bringing the United Kingdom closer together—as the Prime Minister claims to want to do—rather than pushing it apart.

[Mr Jenkin]

I count 10 Ministers on the Treasury Bench, so it is a little churlish to say that the Government are somehow under-represented when I can see only four members of the Opposition Front-Bench team. I think that says it all. This Government are listening hard to what the hon. Gentleman is saying even though he is being rather tedious.

[Stephen Doughty]

I do not normally respond negatively to the hon. Gentleman, but he fundamentally misunderstands my point. I did not say that Ministers were not here and listening; they clearly are. I can see the Minister for Africa, a Health Minister, the Skills Minister, Brexit Ministers and the Leader of the House, but where are the representatives of the Departments that are supposed to be doing the frontline discussions with the devolved Administrations? They are not here. [Interruption.] The hon. Member for Norwich North (Chloe Smith), a former Northern Ireland Minister, is also here, but I think she moved in the reshuffle. [Interruption.] She might be at the Cabinet Office—that is wonderful to hear—but where are the relevant Ministers? They should be listening, because what is the point of their being in their roles if they are not taking part in debates such as this?

Moving on, we had a lengthy and technical debate in Committee, and I do not want to repeat all the detailed arguments; I intend to focus on the principles that are stake. Fundamentally, this is about respect. The hon. Member for Harwich and North Essex (Mr Jenkin) spoke about trust, and it is also about trust. It is about respect for Wales, Scotland and Northern Ireland and for democracy in a wider sense, because the powers that the legislatures of Wales, Scotland and Northern Ireland now have are the result of several referendums, several elections, detailed debates and consideration, and a great number of Acts. This is about respect for the devolution settlement and, ultimately, for the Union. I made an election promise to stand up for Wales alongside many of my Welsh Labour colleagues, and I wanted to raise our concerns today because they are so serious.

I have not re-tabled all the amendments that were tabled in Committee, because we have limited ability to consider them at this stage, but I live in hope that the new Cabinet Office Minister and the Government will work to address many of the concerns. However, I have no doubt that Members of the other place, where we have ex-First Ministers, distinguished former Ministers and Members who have served in devolved Administrations, will look carefully at the detailed concerns that were raised in Committee, at statements from the Scottish and Welsh Governments about the deficiencies in the Bill as it stands, and at the Government’s failure to address the issues, even in the limited set of amendments that they have tabled for consideration on Report.

I share the serious concerns about clause 11 and the lack of UK-wide frameworks and mechanisms to address many things, which reflects the wider complexity in this endeavour that we are rolling ahead with. We heard about Anguilla earlier on, and who would have thought that that would be a concern? There is so much detail in the complexity of the integration of our relationship with the European Union that the Government simply have not given enough it attention. Whether someone voted leave or remain, trying to address some of the issues is only in the country’s interests.

The White Paper of March 2017 claimed that there would be a significant increase in the decision-making power of the devolved Administrations and that former EU frameworks would be subject to decisions by democratically elected representatives of the United Kingdom. That clearly is not the case with this Bill as it stands. We have heard that there are 111 powers, but we are supposed to just take it on trust that all of them will transfer when the UK Government have repeatedly attempted to undermine the devolved Administrations. I raised that during the passage of the Trade Union Act 2016 and when discussing the Agricultural Workers Board. There is a litany of examples of when things end up in the Supreme Court or in complex disagreements, instead of being addressed in the first place.

The Secretary of State for Scotland suggested that amendments would be made at this stage, but we have not seen them. They have obviously become caught up in some shenanigans that were partly dealt with in the reshuffle. The situation is greatly disappointing, not least because the amendments that were drafted by the Welsh and Scottish Governments that were tabled as cross-party amendments by me and many other hon. Members were proposed in good faith. They were not about stopping Brexit or trying to wreck the Bill; they were serious, well meant and well intentioned and tried to address the serious concerns about the provisions in the Bill. Indeed, we know those concerns are shared by many Conservative Members. It is a shame that the hon. Member for East Renfrewshire (Paul Masterton) has left his place, but he said in Committee that

“clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version.”—[Official Report, 4 December 2017; Vol. 632, c. 731.]

--- Later in debate ---

[Stephen Kerr]

The hon. Lady is describing the attitude of the Welsh Government, which in many respects has been more hawk than dove on these matters. I have no doubt that that is for the Labour party’s political purposes in Wales, as such things are for the SNP in Scotland.

[Mr Jenkin]

It would be helpful if the Government gave an assurance today that in the event that there is no agreement with the Scottish or Welsh Governments, they will still amend clause 11—unilaterally, if necessary—to ensure that its effect is ameliorated as reasonably as possible. If the Scottish and Welsh Governments refuse to agree to that, it will be a problem for them and not for this Parliament.

[Stephen Kerr]

I completely agree with my hon. Friend. I believe that we must not be foolishly optimistic but realistic. When SNP Ministers talk as positively as they have, which is a different sound from the one that we hear from SNP Members here, then we have every reason to believe that wise heads—adult heads—will have sway and there will be an agreement.

I repeat—I do not want this not to be heard—that the Government made a clear commitment to the House on the amendments to clause 11, and I took those commitments at face value. As a Conservative Member, I never want to get to the point where I cannot take commitments given to me by right hon. and hon. Members at face value, because I hope, frankly, that they can continue to trust commitments that I might make to them. I really do want to understand why we have arrived at this point. I am afraid that there is a point of principle and accountability involved in answering these questions. What happened in the Departments in the past few weeks and months? Did they somehow lose focus? Were we not clear enough about what our expectations were?

I share with the House a concern that has resurfaced time and again since I was elected as Member for Stirling: since the devolution settlement UK Governments of all flavours have tended to devolve and forget, and that is a very dangerous practice. Again, I appeal to the Government to consider the appropriate machinery that creates the means by which our Governments work together, because that is what my constituents want. They are tired of the voices of conflict that they hear regularly in Scotland. They want us to be conciliatory. They want us to work by consensus and through collaboration.

When the devolution settlements first went through, when Labour was in power, there was a fashionable term that is still appropriate—“sofa government”. With a Labour Prime Minister in London and Labour First Ministers in Edinburgh and Cardiff, it was all very cosy, and so there was no need for any of the machinery that I am describing. In fact, one of the Scottish Labour leaders described their party in those days as the “branch office” of the party in London. By contrast, we as Unionists should believe in and work to the principles of partnership, and I believe that that is possible.

The reason behind amendments to clause 11 was to strengthen devolution and by doing so strengthen the Union. The nationalists will always create their narrative of grievance and scream “power grab” at every imagined opportunity. A strong amendment would have pulled the rug from under their squalid argument. It would have shown them up as the creators of grievance rather than giving grievance a voice, which we are hearing today.

Let me touch briefly on the rather weak amendments being offered up by the Opposition parties. The SNP amendment has no chance of passing and does nothing to address many of the concerns that Conservative Members have. The Labour amendment is well-intentioned but poorly drafted, and will only make room for legal wrangling and uncertainty. Not only that, but it shows no understanding that devolution in the UK is asymmetrical. The Scottish, Welsh and Northern Irish Parliaments are very different creatures, and there will undoubtedly be a need for frameworks that cover different parts of the United Kingdom and not just whole-United Kingdom frameworks.

For the good of Scotland, any powers that are returning to the UK from Brussels that are not reserved must, by definition, be devolved. I accept that UK frameworks are required. They can pragmatically solve problems, and they should do so through an equal partnership where all sides—Cardiff, Edinburgh, London and Stormont —can come together to solve problems and to share ideas. This is pragmatic partnership building. It is Unionism at its best, and even the enlightened nationalists seem to sign up for this. Everyone seems to agrees with it, so again I am left wondering why we would allow this Bill to leave this House and go to the other place without a suitable amendment.

I make no bones about it: it sticks in my craw to think that unelected Lords will make the vital amendments to this vital constitutional Bill. It is not really good enough, and as a Member of the House of Commons I hang my head to think that we have somehow dropped the ball. The Bill will leave this House unamended and in an unsatisfactory state, and we are now dependent on unelected Lords to do our job for us.

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[Stephen Gethins (North East Fife) (SNP)]

I will speak to amendment 6 in my name and that of hon. Friends and colleagues. It is crucial in protecting the legislative competence of the Scottish Parliament and the Welsh Assembly. I am grateful for the cross-party support, but most of all I want to acknowledge the officials in the Welsh Assembly Government and in the Scottish Government who worked together to produce good amendments that we can support on a cross-party basis. We were able to introduce them in Committee and to reintroduce them on Report. I have absolutely no idea why the might of the UK civil service has been unable to do so for either stage. At this stage of the debate, I hoped to have the opportunity to debate the amendments promised to us by the UK Government to amend clause 11. I know that the fact that that has not happened has been a deep disappointment across the Chamber.

It is somewhat startling that amendments have been tabled that appear to be based on a presumption that clause 11 remains the same. That is why we cannot back those minor amendments. We were also told that the amendments had been tabled without consulting or agreeing with the devolved Administrations. We have heard a great deal about consultation and agreement, but I have no idea how we can strike an agreement on amendments without first seeing them; we have not even seen them. Members of the Scottish Government, and, I understand the Welsh Government, have not seen them either.

Unfortunately, the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) is not in his place, but on a proposal about EU nationals today from the Commission he remarked that the Government should just smile and do nothing. It would appear that the Government are taking half that advice because we are not seeing that many smiles.

We have heard a great deal from the Scottish Conservatives about their unhappiness with their own Government. I wonder whether they will join in the opposition tonight and vote for the amendments that we have tabled, or vote for Labour Front Benchers’ amendment 3, which we do not think is perfect, but it is better than what we have and we will support it. With the Scottish Conservatives and the Opposition, we have a majority in this place. That is a powerful voice that we could have here. Will the Scottish Conservatives vote with us, or will they be yet more Lobby fodder willing to prop up a failing and faltering UK Government who do not keep their promises?

[Mr Jenkin]

Will the hon. Gentleman give way?

[Stephen Gethins]

I am going to make some progress.

On 6 December, the Secretary of State for Scotland was asked by MPs across this House about the amendments to clause 11. He said:

“The answer is that it will happen on Report”—

the stage we are at now. He added:

“We have been very clear about this”—

terribly clear it would seem—

“The Committee stage is about listening and adapting to issues…we will table amendments to clause 11.”—[Official Report, 6 December 2017; Vol. 632, c. 1021.]

They have not. Now we are at the stage where this will go to the House of Lords. It is a democratic abomination that the Scottish Parliament will have less of a say, and this House consequently will have less of a say, than the House of Lords. The Scottish Conservatives seem to be embarrassed about that. I wonder whether they are joined by anybody else who is even remotely embarrassed.