European Union (Withdrawal) (No. 5) Bill

Bernard Jenkin Excerpts

3rd reading: House of Commons & Report stage: House of Commons
Wednesday 3rd April 2019 Commons Chamber

[Sir William Cash]

I certainly have. The Speaker has ruled on the matter, and I take the view that if the Speaker has ruled, even if I am unhappy with the ruling, that means that I need not go into all the details. I could spend the next 20 minutes giving all the reasons that I believe that there should be a money resolution, but I will resist the temptation because I want to get on to the meat of the Bill. The fact that it is known that it could cost as much as £90 billion is, I should have thought, enough to alert a great many people and make them seriously worried about whether they should vote for it, and I hope that they will not.

Clause 1(1) is mandatory, and gives rise to the important constitutional question whether Parliament can direct a Prime Minister to move a motion. That is constitutionally ridiculous. In clause 1(2), to which my new clause 4 refers, the “form of the motion” is not mandatory, stating that the House

“agrees for the purposes of section 2 of the European Union (Withdrawal) Act 2019 to the Prime Minister seeking an extension”.

If passed, the provision would permit the Prime Minister to seek an extension, but that in itself would not force her to ask for it. However, neither clause 1(4) nor clause 1(5) sets any time limit relating to when the Prime Minister must seek the extension, or explains how that would be achieved. Is enough time available for all this to be done? The answer is clearly no.

I assume that Royal Assent would be given after the Bill had been to the House of Lords. God knows what the House of Lords is going to make of it. The House of Lords has a Standing Order, Standing Order No. 72. What have the Government done, no doubt with the connivance—if that is not an inappropriate expression—of my right hon. Friend the Member for West Dorset (Sir Oliver Letwin)? They have simply knocked out Standing Order No. 72, which is an outrageous and completely unconstitutional act.

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

My hon. Friend has questioned the ability of the Act to be enforced. My Select Committee, the Public Administration and Constitutional Affairs Committee, put that question to Lord Judge, the former Lord Chief Justice. I asked:

“How would this be enforced?”

He replied:

“I think it could only be enforced politically by the House of Commons. Please do not think for one moment that anybody should be able to seek a judicial review. Not only would it be ludicrous for the judiciary to be involved in deciding a political question, but they would have a way out if anybody took that step, by saying that there is an alternative remedy—to go back to the House of Commons. That is the only way it could possibly be enforced, in my view. It would be up to the House.”

Is this not a completely useless piece of legislation?

[Sir William Cash]

It is not only completely useless, but it is rubbish. I see that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) has just come into the Chamber. Let me ask him, if I may, whether he drafted this Bill. He drafted a great many amendments during the passage of the withdrawal Bill itself back in 2017-18, and I noticed that quite a lot of them were so bad that they had to be junked.

--- Later in debate ---

[Sir William Cash]

I want to make some trouble. The people of Wales, Scotland and Northern Ireland might well have strong interest in the extent to which they are involved in this process. My amendment is a means to provide them with that opportunity. I will not contradict what the hon. Gentleman says. Under our constitutional settlement, there is a Scottish Parliament, a Northern Ireland Assembly and a National Assembly for Wales, so I would have thought that they will be extremely interested to know whether they were being cut out of the process prescribed in the Bill. It is not my fault that the Government made proposals and had all the joint committees that the various leaders of the devolved Assemblies complained that they had not been properly involved in. I am giving them a chance to be involved. He may be right about the legislative consent point, but I am right to think that in relation to this crazy Bill it would at least be useful for the people of Northern Ireland, Scotland and Wales to be able to make their contributions in their devolved legislatures. I think that point is worth making, and I therefore intend to press amendment 6 to a vote. Of all the amendments I tabled, that is the one that I want to move most.

[Sir Bernard Jenkin]

I will be as brief as I can. I want to speak against clause 1 stand part. The clause is the heart and strategic intent of the Bill. It is trying to put this House in a position to stop the United Kingdom leaving the EU on the date on which the Government might want us to leave. There is no question about that.

I very much agree with my hon. Friend the Member for Camborne and Redruth (George Eustice) who made the point that the process of attrition in this House to limit the Government’s negotiating freedom in the end very much undermined their ability to get a better deal and to negotiate from a position of strength. If people cannot walk away from a negotiation they are in, and they have to agree something at the end of it, the other party simply calls the shots. That certainly strengthened the hand of those who want us to have a bad deal. I have made some points in the debate on one of the earlier business motions about the constitutional impropriety of this whole process.

I also invite the Committee to reflect on what this House looks like tonight as we discuss such highly technical issues. The British people expect us to be discussing the big principles of whether we should leave without a deal on WTO terms or sign up to the withdrawal agreement. This particular debate, however, seems particularly obscure and unavailable to voters. It will make this House look particularly out of touch, especially because the Bill is somewhat otiose.

I have argued for some time with colleagues on the Conservative Benches that the Prime Minister has demonstrated little intention of ever leaving without a withdrawal agreement. The fact that the Government have spewed out a whole raft of information basically about why they do not want to leave without a deal underlines that point. I therefore think that the Bill is unnecessary.

In my comments to my hon. Friend the Member for Stone (Sir William Cash), Chair of the European Scrutiny Committee, I pointed out that the Bill is also unenforceable. Just look at the wording of subsection (4), which is that

“the Prime Minister must seek an extension of the period specified in Article 50(3) of the Treaty on European Union”.

What does “seek” mean in the circumstances? What happens if the Prime Minister makes a telephone call asking for an extension, says “Thank you very much” to what is offered, and puts the phone down again? How will that process be scrutinised and made accountable? How do we judge what is a serious seeking in good faith, and what is a mere technical seeking? That underlines the total futility of the House attempting to legislate in this way. Our system of government is not set up for Parliament to legislate for detailed instructions on how Ministers should carry out their duties. We tend to make laws on a much more general basis than that. That is why the system just does not work.

[Michael Tomlinson]

My hon. Friend makes a really important point that builds on other points made during Committee. Has not a further defect been pointed out? There is no timeframe. The Prime Minister is not mandated to “seek” in any manner, or within any particular timeframe, so she could do nothing until 13 April and still intend to comply fully with the Bill.

[Sir Bernard Jenkin]

Yes, and we absolutely know why the Bill is framed in these very vague terms—it is precisely to avoid its falling foul of rules that require a money resolution for a Bill that gives more specific instruction.

[Sir William Cash]

My hon. Friend—a good friend—is making very good points. This also gives rise to the question of scrutiny, which he mentioned. My Committee will undoubtedly have to try to work out how to deal with these scrambled eggs; and how will the House of Lords deal with this, given that it has disallowed Standing Order No. 72? Will it truncate its business to such an extent that it will not be able to get this right? Who will get this right?

[Sir Bernard Jenkin]

I will not attempt to answer that question, because it answers itself. Nobody will be held accountable for what goes wrong as a result of the Bill.

If the Prime Minister goes to the European Council for an extension—I have long been reconciled to the expectation that she will—what really matters are the conditions that come with it. Where is the accountability for the conditions that will apply? Or will she simply accept an enforceable agreement with conditions, and bring it back to the House as a fait accompli, as she did originally?

[Mrs Main]

rose—

[Sir Bernard Jenkin]

I will press on, if my hon. Friend will allow me.

I have addressed the enforcement point, but let me come back to the question of legitimacy. The issue is not just the illegitimacy of the whole process, and the concept of the House legislating to instruct Ministers in a way that is outside the control of Ministers. As I said, there has been a huge Government campaign—some might call it a fear campaign—supported by the second referendum campaign and other very well funded lobby groups and business interests. The arguments in favour of leaving without agreement have pretty well been disposed of by default. They do not get a hearing. One can think of one or two broadcast outlets that delight in ridiculing perfectly respectable arguments.

I have a document here called “30 Truths about Leaving on WTO Terms”. It goes through all the canards, and it sets out how leaving without an agreement would leave us with an extra £39 billion to spend on our priorities, which over a couple of years would increase the GDP of this country by about 2%; how it would end uncertainty much more quickly; and how every party involved with the Irish border has said that there will be no infrastructure there in the event of a no-deal Brexit. So it goes on. I shall not detain the Committee with those arguments now, because this is not the time to make them; I just make the point that these arguments have simply not been made. Despite that, a very recent poll conducted by YouGov shows that where an extension is an option, 40% would support no deal. Only 11% would support an extension, though 36% would still support remain. The point is that the most popular option in the polls at the moment is leaving without a deal, so who does the Bill represent? This is despite the deluge of propaganda that has been emptied—[Laughter.] Opposition Members laugh, but no effective leave campaign has been conducted in favour of no deal, and the Government, who pretended to say they agreed that no deal is better than a bad deal, have not conducted a campaign to reassure voters that leaving without a deal is a sensible option. Despite that, the British people want to leave.

Who in this House was elected to put this Bill through Parliament? Who is this House was elected by saying, “When I am elected, I am going to put a Bill through the House to delay article 50”? The right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper), who is promoting this Bill, was not elected by saying that. She was elected on a manifesto to leave, and she is now defying that manifesto and voters in her own constituency, who voted to leave. When the extension option is removed in the YouGov poll, the percentage of people in favour of the no-deal option goes up to 44%, against 42% who are in favour of remaining. No leave campaign has been conducted in this country for the past two or three years, yet that is what the British people think.