European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Thursday 7th September 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

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

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

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

“declines to give a Second Reading”

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

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

Will my right hon. and learned Friend give way?

[Mr Clarke]

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Chuka Umunna (Streatham) (Lab)]

I do not want to repeat many of the excellent points made from the shadow Front Bench and elsewhere, but I do want to make one observation and two points—one legal and technical on clause 6, and one that is more substantial on clause 9.

First, I want to make an observation. I am sorry, but I disagree with the hon. Member for Newark (Robert Jenrick), who has just spoken: what is proposed in this Bill is unprecedented, as we see from the reaction on both sides of the House.

There is an absurdity in this debate. I spent much of the time during the EU referendum debating against Conservative Members campaigning to leave. More often than not, the core of their argument was about a Brussels elite exercising power, yet I have sat in the Chamber for most of today and listened to them become arch-advocates of transferring power to another elite in this country.

It is a shame that the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) is no longer in the Chamber. He talked about his participation in the Maastricht debates of the 1990s, and the hon. Members for Harwich and North Essex (Mr Jenkin) and for Stone (Sir William Cash) were also involved. The Prime Minister of the time had a word to describe them all, which I will not repeat today. They were constantly invoking parliamentary sovereignty and the importance of this House determining the future of our nation. It is funny how silent they are on upholding that argument now, and have been over the last few hours of this debate.

Let us be honest about the reason for this and for the absurdity of their position in this debate: they promised Brexit in terms that simply cannot be delivered in the timeframe the Government envisage. That is why we see these unprecedented, extraordinary powers envisaged in this Bill for the Executive. It is entirely right for us to keep reminding people of what the promises were and whether they are being delivered.

My technical point on clause 6—

[Mr Jenkin]

Will the hon. Gentleman give way?

[Chuka Umunna]

I will not give way, I am afraid, because of the time. [Interruption.] The hon. Gentleman says he is not silent; he is certainly not silent.

The Secretary of State today said that the Government wish the transitional arrangements to be as close as possible to the existing arrangements. The EU27 are really only going to entertain membership of the single market and a form of customs union, if that is what the Secretary of State means, but they will also expect the rules on the transitional arrangements to be uniform and similar to those we have at present. The problem with clause 6 as drafted is that it does not give a clear enough instruction that after the exit date the judiciary should interpret UK law in a way that complies with EU law. The Institute for Government states that the ambiguity on this point risks leaving judges stranded on the frontline of a fierce political battle. I can say, as someone who practised as a lawyer for the best part of a decade before coming here, that that must be addressed.

The Bill cannot be allowed to come into force unless this House has approved the deal that is envisaged. The Bill does not state whether any withdrawal agreement will need the consent of both Houses before the powers can be used. The Government have said that we will get a vote on a final deal, but that does not appear to be within the Bill. Rather, it will take place by means of a motion, which would of course not be legally binding. So we have a promise of a vote, but it will have no teeth. That will deprive this House of its proper say not only on the withdrawal agreement but on a situation that the Prime Minister has described in which an affirmative decision could be made to walk away without any deal at all. We are somehow supposed to be passive spectators in that situation. It must be written on the face of the Bill that Parliament will have a part to play in all those scenarios, and that no powers in the Bill will be exercised until Parliament has had its say through a debate written in statute. We have been given many guarantees and assurances by those on the Government Front Bench, but these measures have to be put on the face of the Bill. We are asking for these assurances and scrutinising the Bill in the national interest, and we are entitled to do so without our motives being questioned.