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.

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[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.

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[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?

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[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.