Parliamentary Scrutiny of Leaving the EU

Bernard Jenkin Excerpts

Wednesday 12th October 2016 Commons Chamber

[Keir Starmer]

The prerogative has come up so often that I will deal with it now in substance. Prerogative powers, of course, developed at a time when the monarch was both a feudal lord and Head of State. That is the origin of prerogative powers, but they have changed over time, yielding where necessary to the demands of democratic accountability. There are plenty of examples, as the Secretary of State will know, in the courts of that change in accountability, but there is also the example of the prerogative power to commit troops in armed conflict. In theory, the Prime Minister and the Cabinet retain the constitutional right to decide when and where to authorise action, but in practice Governments in recent times have ensured parliamentary debate and a vote.

Responding to the Chilcot report earlier this year, the then Prime Minister made the point during Prime Minister’s questions when he said:

“I think we have now got a set of arrangements and conventions that put the country in a stronger position. I think it is now a clear convention that we have a vote in this House, which of course we did on Iraq, before premeditated military action”.—[Official Report, 6 July 2016; Vol. 612, c. 881.]

A strong political convention modifying the prerogative has thus been set.

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

Will the hon. and learned Gentleman give way?

[Keir Starmer]

I will just complete this section on the prerogative.

The underlying premise of the development of the prerogative is clear and obvious. The more significant the decision in question and the more serious the possible consequences, the greater the need for meaningful parliamentary scrutiny. That lies at the heart of this, and it is hard to think of a more significant set of decisions with very serious possible consequences than the terms on which we leave the EU.

I will press this point because all this is well known to the Secretary of State. After all, he tabled a ten-minute rule Bill in June 1999 that was concerned with

“the exercise of certain powers of Ministers of the Crown subject to control by the House of Commons”.

I shall quote his approach to the prerogative. When he introduced that Bill on 22 June 1999, the right hon. Gentleman, now of course the Secretary of State, said:

“Executive decisions by the Government should be subject to the scrutiny and approval of Parliament in many other areas... The Bill sets out to...make”

the prerogative

“subject to parliamentary approval, giving Parliament the right of approval over all Executive powers not conferred by statute—from the ratification of treaties to the approval of Orders in Council, and from the appointment of European Commissioners, some ambassadors, members of the Bank of England”.—[Official Report, 22 June 1999; Vol. 333, c. 931.]

So he has changed his position. Back then, he recognised that the prerogative ought to be subject to Parliament. It was 20 years ago, but progressive movement with the prerogative is usually in favour of greater accountability, not less, so the fact that he argued that 20 years ago is not an argument against doing it now. That Bill did not proceed, but the principles are clear and set out. The prerogative is not fixed; parliamentary practice and convention can change the prerogative, and have done so in a number of ways. In any event, I fall back on my primary point: even if the prerogative permits the Government to withhold the plans from Parliament, it does not require them to, and political accountability requires the Government to put their plans before Parliament.

[Mr Jenkin]

The hon. and learned Gentleman misses one rather important fact: there has been a vote of the British people—a vote delegated to them by the terms of the European Union Referendum Act 2015. This is the question that he has to answer: suppose there was a vote in this House; how would he vote? Would he vote against article 50 invocation, or in favour? Just give a straight answer to that.

[Keir Starmer]

I will not take long responding to that, because I have made the point, which is that the mandate on 23 June was not a mandate as to the terms, and I think that most people understand that; I cannot put it any clearer than that.

There is the question of how Members would vote, what they would vote on, and what happens if Parliament does not like the terms. The Secretary of State, in his statement on 5 September, emphasised that he would consult widely, including the devolved countries, which of course are very important in all this, and which deserve scrutiny of how exit will impact each of them. He also said he would

“strive to build national consensus around our approach.”—[Official Report, 5 September 2016; Vol. 614, c. 38.]

The question for the Secretary of State is: how will he build consensus around his approach if he will not tell the House what his approach is?

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[Stephen Gethins]

Yet more time at the Dispatch Box for the Secretary of State, but with even less information. We were told that there would be an agreed position with the devolved Administrations. He seems to be backtracking on that. Perhaps in due course he will tell us whether there will still be that agreed position. However, I do not want to get him into trouble yet again, so will leave him to chat to the Prime Minister about that.

[Mr Jenkin]

Will the hon. Gentleman give way?

[Stephen Gethins]

I will make some progress. There is a valuable point that this place has to learn. Democracy in the United Kingdom does not begin and end in this Parliament, and has not done so for some time. Yet at the moment, we are in a situation where the unelected House of Lords along the corridor will have a greater say on what happens next than the elected devolved Administrations.

I will set out some questions that I know those in the devolved Administrations will be asking themselves. What happens to the coastal communities fund, upon which fishing communities depend? What happens to the CAP—an issue raised not least by my hon. Friend the Member for Na h-Eileanan an Iar (Mr MacNeil)? What happens to the renewables obligations, where Scotland is streaking ahead of the rest of the United Kingdom, along with our climate change obligations? What happens to our world-leading universities—I have to mention the University of St Andrews and its outstanding work in this field?

[Stephen Gethins]

My hon. Friend is clearly in need of a better education.

What happens to the environment and our air pollution targets? What happens to the social protections? All those questions are unanswered—and we still do not have an answer on what will happen on the single market or to European nationals.

[Mr Jenkin]

I chair the Public Administration and Constitutional Affairs Committee. The hon. Gentleman is raising very legitimate points on the very legitimate basis that democracy exists in other parts of the United Kingdom somewhat independently of this House. We therefore need a respectful and constructive dialogue between the United Kingdom Government and the Administrations in the other parts of the UK, as well as between this Parliament and the other Parliaments of the United Kingdom. I have already visited the Scottish Parliament with my Committee to that end, and am offering to give evidence to the Scottish Parliament on those questions and how we should address them. I hope that the dialogue he wants will be in that spirit of co-operation.

[Stephen Gethins]

I thank the hon. Gentleman for raising those points and for visiting Edinburgh. I encourage him and his colleagues on the Committee to interact with their colleagues on the Committees of the Scottish Parliament. I am glad to be able to say this time that I think he has made a very fair point. I agree that that is what should happen.

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[Mr Jenkin]

Is it not also incumbent on the Government to be mindful that article 50 was not put into the Lisbon treaty to make it less complicated to leave the European Union? If we try to include too many things under article 50 that stray into mixed competences, we will finish up with an agreement that requires unanimity. That would lead to a far more protracted negotiation than if we try to keep things simple. In fact, it would be an advantage to business if we could complete this in a much shorter period than the two years specified under the article 50 process.

[John Redwood]

Indeed. This is not a prediction, because I know that a lot of people have lots of good and bad reasons to want to delay and make this more complicated, but it would be quite possible to negotiate the trade issue very quickly.

We have two models available. My preferred model would be to carry on trading tariff free without new barriers, as we are at the moment. That is the most sensible model to adopt, and I think it makes even more sense for our partners, who are much more successful at selling to us than we are to them. I have not yet heard them say that they want to impose barriers. Then there is the WTO most-favoured-nation model, which would also be fine. If one wishes to have a successful, quick and strong negotiation, one should not want anything. We do not want anything from our former partners. We want them to get on and develop their political union in the way that they want, in which we have been impeding them, and we want to be free to run our own affairs in an orderly and friendly way.

We want to have even more trade with our European partners. We want more investment agreements, more research collaborations, more student exchanges and more of all the other good things we have. Those things are not at risk, and there will be an enormous amount of good will from a more united United Kingdom. [Interruption.] Opposition Members want to split us up by saying that everything has to go wrong. If they want us to negotiate successfully, they should show confidence and optimism—let us show that we can do this and be good friends with our European partners.

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[Hilary Benn]

I am grateful to my hon. Friend for that point. I shall come on to address it in a moment.

I was just going to say that some of the uncertainty is inevitable and will not be resolved until the negotiating process has been concluded, but some of it is the result of different things being said by different members of the Government—one has to acknowledge that—as well as the things that have been left unsaid, which may lead others to draw conclusions and then act on them in the absence of clarity.

The announcement by Nissan that it will not invest any more in this country without guarantees from the Government is indeed unwelcome, but it is entirely understandable. What car manufacturer—my hon. Friend the Member for Birmingham, Erdington (Jack Dromey) talked about Jaguar Land Rover—will invest in additional capacity if there is still some doubt that we might leave with no agreement on trade and tumble out on World Trade Organisation terms, which would lead to those cars facing a tariff? I accept that, in the end, we are likely to get an agreement in which there are no tariffs on manufactured goods, and, frankly, the sooner that that can be made clear, the better. There are those who argue that it would be perfectly possible within the two years provided by article 50 not only to negotiate the mechanics of our withdrawal—and that is quite a task—but to conclude a new trading agreement that will give access to the single market for our goods and our services, which have not been much talked about but my hon. Friend made the point that 80% of our economy depends on services. Those who argue that may be right, but I somehow doubt it.

[Mr Jenkin]

rose—

[Hilary Benn]

I will not take any more interventions, because there are many other colleagues who wish to speak.

If that is the case, we will clearly need a transitional agreement to cover the time after we have left the European Union until the moment when a final agreement on trade and market access has been reached. I listened very carefully to what the Secretary of State had to say about that when I asked him a question on Monday. The Government need to say now, explicitly, that if we have not been able to conclude such an agreement by the end of the two years—there is absolutely no guarantee that all 27 member states will agree to extend the period—we will seek that transitional arrangement, because that would help to boost business confidence.

The second aspect of uncertainty is its impact on people. Unfortunately, in the past couple of weeks, a number of statements have been made about EU nationals and overseas workers here in the UK. I welcome the fact that it now appears that there will not be a requirement on companies to publish lists of overseas workers, but a reference was made to overseas doctors, who make a huge and important contribution to the NHS, being able to stay here for an interim period until such time as we have trained more doctors in Britain, which is a good thing. It was unwise to talk about overseas students as if they are a problem to be cracked down on, and it was a mistake to describe EU citizens who are living here, working here and paying tax here as a card to be used in negotiations. Words matter. They are not a card; they are people; and they listen intently to what is said because they realise Ministers are talking about them, and they take it personally and they feel unwanted. That is very damaging to our reputation as a country that has always welcomed people who want to come here to work, to study and to contribute.

I accept that the 52% of people who voted to leave sent us a message about their wish to control immigration from the EU, although many of the people I spoke to during the referendum campaign who made that argument accepted that there would be a continuing need for workers to come, to bring their skills and to contribute to our society in so many different businesses and sectors. So I encourage Ministers to offer as much reassurance as possible now to those EU citizens about their likely future status, while recognising, because it is in our self-interest to do so, that the way in which we approach that matter will have an impact on the spirit in which the other 27 member states, from which those people come, approach the negotiations that we are about to embark on, and to provide some clarity about how the Government plan to balance the desire to control free movement with continued access—