Exiting the EU: Sectoral Impact Assessments

Bernard Jenkin Excerpts

Wednesday 1st November 2017 Commons Chamber

[Keir Starmer]

I will come to that, because we gave some thought to the process, and if the principle of disclosure is agreed, we are open to a discussion about exactly how that works. The Brexit Committee seemed the obvious Committee, but there is clearly interest in other Select Committees in the subject matter, not least medical services and social care, which I know will be of great interest to the hon. Lady.

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

rose—

[Keir Starmer]

I am going to press on, because I have barely got a sentence in. I will give way later but I am really not making much progress at all.

The list of sectors was initially not disclosed, but it was then disclosed on Monday. In her freedom of information request of 30 August this year, my hon. Friend the Member for Feltham and Heston also asked for the scope and the terms of reference of each sectoral analysis. This request too has been rebuffed, in a letter of 29 September. This time, the Secretary of State’s Department relied on two grounds: first, that to disclose the terms of reference would prejudice relations between the UK and another state; and, secondly, that it would prejudice the formulation and development of Government policy. The first of those grounds seems a bit far-fetched, to say the least. The scope and the terms of reference are not even being disclosed.

The second of those grounds is surprising, coming from the current Secretary of State. Back in December 1999, he was Chair of the Public Accounts Committee when the freedom of information legislation was before Parliament. Then, when he was on the Back Benches, he intervened strongly in the debates. He said:

“I do not approach the issue from the perspective of a freedom of information enthusiast…my test is whether it makes democracy and government work better.”

He then said:

“The class exemption applying to all information relating to formulation and development of Government policy, including factual information, is a ludicrous blanket exemption.”—[Official Report, 7 December 1999; Vol. 340, c. 774.]

Today, from the Front Bench, he relies on that ludicrous blanket exemption that he rallied against from the Back Benches.

I shall now turn to the analyses and reports themselves. In a joint letter dated 11 October this year and supported by 120 Members, my hon. Friend the Member for Feltham and Heston and my right hon. Friend the Member for Tottenham (Mr Lammy) sought the disclosure of all the sectoral analyses. I salute their work in pressing the Government time and again on this issue. The Government have responded by saying that the impact assessments could not be disclosed because to do so would undermine the UK’s negotiating position. That is an important consideration, and I have accepted all along that the Government should not put into the public domain any information that would undermine our negotiating position. However, this requires some probing and testing.

The House will recall that when we, the Opposition, were calling for the Government to publish a Brexit plan this time last year, our request was initially refused. It was claimed that—guess what?—to do so would undermine our negotiating position. Thus, in an exchange on 7 November last year, my right hon. Friend the Member for Leeds Central (Hilary Benn) pressed the Secretary of State to reveal the Government’s plan. The Secretary of State said:

“It is no good creating a public negotiating position, which has the simple effect of destroying our ability to negotiate—full stop.”—[Official Report, 7 November 2016; Vol. 616, c. 1264.]

The Prime Minister then coined the phrase “no running commentary” and stuck to it like glue. And so it went on until 7 December last year, when we won an Opposition day motion calling on the Government to publish a plan. The publication of that plan has not undermined our negotiating position, although its contents might well have done so.

On the claim that any disclosure will undermine our negotiating position, I also bear in mind what the Secretary of State said to the House of Lords EU External Affairs Sub-Committee last night when he was pressed on this. He said:

“I don’t think you should overestimate what’s in them. They’re not economic models of each sector, they are looking at how much of it depends on European Union markets versus other markets, what other opportunities may be, what the regulatory structures are, all those sorts of things that inform the negotiation, but they are not predictions. So I wouldn’t overestimate what they are.”

--- Later in debate ---

[Keir Starmer]

I am going to try to make some progress.

The Secretary of State made it clear that the Cabinet had only seen the summary outcomes. If that position has changed, I am sure that the Minister will intervene to clarify the position. If the assessments are so important, the relevant Cabinet members ought to read about the sectors that concern them. It is extraordinary that that has not happened. It is also extraordinary because it raises the question of who is making the decision that these reports cannot be disclosed. Who is making that decision? It cannot be the relevant Cabinet members, because they have not read the reports. When he appeared before the Brexit Committee, the Secretary of State was pretty hazy about that:

“The Government do. To a very large extent it comes to me, but it would depend on which department it is”.

That is interesting, given that the other Departments have not read the reports. He continued:

“Some of the stuff is also held in other departments.”

Who is the decision maker on the non-disclosure of these reports? Is it the Secretary of State for Exiting the European Union? If not, who is it? [Interruption.] I see that instructions may be being taken.

Is there a record of the decision being made? It is a significant decision to withhold information from Parliament. Is a record made of the decision for each report? Where is that record? What criteria are actually applied?

A number of Members, including me, have experience of handling sensitive information—in my case, very sensitive information about very serious criminal offences—and everyone who has been in that position knows that a blanket ban can be justified only if no lesser form of publication is possible. Blanket bans are very rare. Even in the field of counter-terrorism, where there is highly sensitive material, blanket bans are very rare and the Government will normally find a way of publishing some of the material in an acceptable form. The current situation is extremely unusual, even for sensitive material.

Has consideration been given to redacting some of the sensitive material? Has consideration been given to providing a summary to Parliament? That is not uncommon in sensitive criminal cases. Can the gist not be given, or are we seriously expected to believe that not one paragraph, not one sentence, not one word can be disclosed to anyone in this House?

[Mr Jenkin]

I am listening carefully to the right hon. and learned Gentleman, but I can only conclude that it is foolish and irresponsible to have called this debate. He knows there is a blanket ban on disclosing advice to Ministers—that is in the ministerial code and the civil service code, and it is absolutely standard. It is normal for Select Committees to request information themselves, rather than getting the official Opposition to do it on their behalf. This is game playing.

[Keir Starmer]

I am surprised by that intervention, given the concerns expressed by the right hon. Member for Broxtowe, the right hon. and learned Member for Beaconsfield (Mr Grieve) and the hon. Member for Totnes (Dr Wollaston). The concern is shared on both sides of the House.

The intervention of the hon. Member for Harwich and North Essex (Mr Jenkin) is typical of what has been going on for 16 or 17 months. Every time somebody raises a legitimate question, it is suggested that they are somehow frustrating or undermining the process. It is not unlike the interventions I took a year ago when I suggested that the plan should be published. The interventions were exactly the same.

This is lockdown, a blanket ban. If the exemption for ministerial advice is being relied on, it is curious that it is not mentioned as the ground being relied on in the letter in response to the freedom of information request. That is why we have brought this motion to the House—

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[Huw Merriman]

I will not take any more interventions; the hon. Gentleman will have his own time.

As I was saying, I find that a shame. On Monday, our Transport Committee heard from four leaders—those of British Airways, EasyJet, Manchester airport and Heathrow airport. We challenged them on whether this would be a success for industry and they could not have been more confident that it would be. They were confident in their industry, but with the proviso that, between industry and politicians, we would make a success of it. My concern is that politicians seem to be the ones who do not have it in them to make a success of it. Again, I challenge all hon. Members who voted to trigger article 50 to talk this process up and make a success of it.

[Mr Jenkin]

On a point of order, Madam Deputy Speaker. I have been listening carefully to the exchanges in the debate. The motion on the Order Paper is clear and unqualified: it says that the impact assessments should

“be provided to the Committee on Exiting the European Union.”

During the debate, though, those who proposed the motion and others who support it have suggested that parts of those documents might be withheld. Have you received an amendment to the motion that might qualify what should be provided to the Select Committee, or is it for the Government to interpret what they should do after the debate?

[Madam Deputy Speaker (Mrs Eleanor Laing)]

I thank the hon. Gentleman for his point of order. I can answer the practical part of it very simply by saying that the Chair has received no such amendment. As far as I am concerned—and I can be very positive about this—the matter that is currently being debated is exactly the wording in the motion before us on the Order Paper. The way in which the Opposition interpret that might be different from the way in which the Government interpret it. That is what this Chamber is here for: to discuss those differences and come to a conclusion.

--- Later in debate ---

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

The hon. Member for Sedgefield (Phil Wilson), who has just sat down, is another supporter of this motion who is now talking about the release of a set of justifiably redacted documents, as opposed to the complete documents. This underlines the fact that the House is debating documents, but we do not really know what is in them because we do not have them.

Some colleagues think that these documents will contain some dreadful smoking gun that will blow the Government’s case out of the water. I can honestly say that I believe that the Government are far more concerned about releasing information into the public domain that will actually help the European Union in the negotiations, when the European Union clearly has no intention of releasing its impact assessments. Indeed, one of the reasons we are leaving the European Union is that this House has absolutely no power over which documents the European Union should be compelled to release because it is completely beyond the power of this House.

[Michael Tomlinson (Mid Dorset and North Poole) (Con)]

Does my hon. Friend recall that the shadow Secretary of State said, very fairly, that he would anticipate that there may well be some redactions or even a summary?

[Mr Jenkin]

My hon. Friend is absolutely right.

We are beginning to see, in this rather messy and untidy debate, why this 19th century procedure is not used very often. The usual procedure would be that the Select Committee would request the documents, but it has not requested these documents. No writ or summons have been issued for any of these documents. We simply have this motion.

There is a sensitivity within Government about releasing documents that are used to make political points. Part of the Treasury’s reputation was severely trashed when, in the run-up to the referendum, it released documents that were patently misleading and were used for propaganda purposes in a way that I think rather embarrassed Treasury officials.

Then there is the question of the status of the motion. The words “binding” or “not binding” do not appear in “Erskine May”. There is a misappreciation of the meaning of these motions. By passing a motion, the House is not making law. There are no obligations that are enforceable through the courts as there would be if we were passing a set of regulations or an Act of Parliament. It is simply an expression of the will of the House.

[Mr Rees-Mogg]

“Erskine May” does indeed not say “binding”, but it does say:

“Each House has the power to call for the production of papers by means of a motion for a return.”

Power is something pretty forceful, and is much more than just an expression of will.

[Mr Jenkin]

My hon. Friend takes me to the very next point, which is that it would be unconscionable for any Government to ignore a motion. But I heard the Minister very clearly saying that he does not intend to ignore the motion. In fact, he made it clear that the Government will respond to the motion. This echoes what the Leader of the House said recently in business questions about Opposition day motions. She said that there should be a standard, and that the Government will respond to a motion in the House within, at most, 12 weeks of the will of the House being expressed in such a way.

The very fact that we are having a debate about exactly what would be released means that it is a matter for the Government and Ministers to interpret. If the House is then still not satisfied with what has been released, the House can come back to it. Let us not get in a paddy that there is some great constitutional principle. Parliament is sovereign not because it passes motions, but because, in the Diceyan sense, Parliament can make or unmake any law; and I reiterate that in this matter, we are not making law—at least, not law that is statute law and enforceable through the courts.

It is worth repeating to the House what the Minister reminded us during his opening remarks, which is that the House has previously voted, by a large majority, to protect sensitive information that is relevant to the negotiations. That is why I invite the official Opposition to think very carefully before repeating this exercise. These documents may not be very serious and there may not be very much in them, but this is a power to call for papers that should be used sparingly, precisely because these are the negotiations of a generation.

Unless the Government have the freedom to conduct the negotiations with the necessary confidentiality, the Opposition will undermine the ability of the Government to produce the better terms of settlement that the Opposition say they want. This is potentially extremely disruptive and irresponsible, and the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) knows it. This is more about party politics and exploiting the situation for party advantage than it is about supporting the national interest. There may be a great sea of Opposition colleagues jeering at that point, but they are jeering at the national interest when they jeer in that fashion.

[Robert Jenrick (Newark) (Con)]

My hon. Friend has hit on the most salient point. My family business is on the industrial estate in Newton Aycliffe mentioned by the hon. Member for Sedgefield (Phil Wilson). That business, like all the others I have met on that industrial estate, care about one thing: getting the best deal for the United Kingdom. They do not want the Government or this House to do anything that will compromise that. Releasing these papers will do just that.

[Mr Jenkin]

The businesses I speak to in my constituency and around the country are increasingly impatient with the games being played here at Westminster and the games being played by the European Union. They want us to leave the European Union and they want us to get on with this to end the uncertainty as quickly as possible. They do not want a protracted and uncertain future for this country, made worse by the irresponsible tactics of the Opposition.

[Angus Brendan MacNeil]

The last Brexit promise left standing was the promise to take back control. What we are seeing today is the Brexiteers running away from control.

[Mr Jenkin]

It always struck me as odd that those in the Scottish National party believe in self-determination for Scotland, but want to sell out to a superstate European Union. I have never understood how they reconcile the desire for independence with wanting to be shackled to a superstate in which they would have but a pimple of influence compared to the influence they have in the United Kingdom.

[Angus Brendan MacNeil]

On a point of order, Madam Deputy Speaker. Should we not use the correct terminology in this Parliament? Should we not understand what the European Union is? It is a union of 28 sovereign Governments. It is very far away from being a superstate.