United Kingdom’s Withdrawal from the European Union

Bernard Jenkin Excerpts

Friday 29th March 2019 Commons Chamber

[Sir William Cash]

That is exactly the point. I see the Solicitor General chuntering a little. He is a good friend of mine, but I have to say that he knows this is a serious point––the Attorney General referred to private conversations I have had, and I will now refer to one that I had with both him and the Solicitor General—and he acknowledges that it would need to be sorted out, because there is a serious worry.

What happened can be very simply stated. On 26 June last year, we passed the European Union (Withdrawal) Act 2018, section 1 of which states that the European Communities Act 1972 is to be repealed on exit day. Exit day operates in lockstep with whatever exit day turns out to be. However, the reality is that, because of the saving provisions, and under article 4, on the capacity of the Court to disapply enactments, it is just conceivable—indeed, it is highly possible—that issues of interpretation could arise.

We need to discuss this properly, but we cannot do so until we see the implementation Bill. I know that the Solicitor General agrees. In fact, some Secretaries of State—I will not disclose which—have told me that they think we should see a copy of the Bill, because until we see the drafting, we will be unable to judge its impact on the repeal of the 1972 Act, which itself is the anchor of the referendum. I repeat the point that the referendum was itself endorsed by a sovereign Act of this Parliament that transferred the decision to the British people, and the British people make that decision, in line with the wishes of the electorate.

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

I am perfectly clear that whatever the public voted for in the referendum, or at the last general election, nobody had a clue that they would be voting for a withdrawal agreement anything like the one before the House today. May I ask my hon. Friend about a matter of good faith? I interpreted the Attorney General’s remarks to be a suggestion that we should perhaps approve the agreement today in order to satisfy the technical terms of the extension agreed by the EU27, on the basis of some kind of ruse to get a further extension, even though we have not actually approved the withdrawal agreement and the political declaration in the terms that we said we would. Is that an act of good faith with our European partners?

[Sir William Cash]

I very much agree with my hon. Friend. Indeed, I will go further and say that the change of gear between 26 June, when the withdrawal Act received Royal Assent, and 12 July, when the White Paper that followed the Chequers proposals was published, demonstrated bad faith, because it must have been pre-planned while the withdrawal Bill—which I thoroughly agreed with and gave the Government every conceivable assistance in getting through––was going through Parliament. The reality is that it was produced only 10 days later, so we need only ask how the Government could write an 80-page White Paper without planning it some months in advance.

Northern Ireland Backstop

Bernard Jenkin Excerpts

Tuesday 19th February 2019 Commons Chamber

[The Solicitor General]

I can agree with the hon. Lady to this extent: it is incumbent on politicians from all parts of the House, most importantly on those on the Opposition Front Bench, to work to achieve a solution, rather than to achieve nano-party-political ends. I entirely agree with her. I have seen precious little of the former, and far too much of the latter, but God loves a sinner who repenteth, and I look forward to the Opposition following that advice and helping us all to do our duty and get the deal through.

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

First, may I thank my hon. and learned Friend for making it clear that there are viable alternative arrangements, which the Government are discussing, arising from the so-called Brady amendment? Last week, President Tusk tweeted that no concrete proposals had been received from the UK Government. Will he now confirm that these proposals have been presented as Government policy to the European Union?

[The Solicitor General]

I am grateful to my hon. Friend. He knows that it would be invidious of me to provide that running commentary that I have been quite properly resisting. May I assure him that the discussions are more than diplomatic niceties? They are meaningful and substantial and will continue in greater depth in the days ahead.

European Union (Withdrawal) Act

Bernard Jenkin Excerpts

Tuesday 15th January 2019 Commons Chamber

[Sir Jeffrey M. Donaldson (Lagan Valley) (DUP)]

I am delighted to take part in this debate. My constituency voted by a majority to leave the European Union, but I recognise that there are many voices in opposition to that in Northern Ireland. I have no doubt that the Prime Minister has worked very hard to try to address the concerns that have been raised on both sides of this debate, and I commend her for that, but when I hear Members speaking about the danger that Brexit poses to the peace process in Northern Ireland, I have to refute that notion. I believe strongly in the peace process. I am delighted that in the past 20 years we have seen a reduction in violence—our streets in Northern Ireland have become more peaceful. That is something I want to maintain, and we do not want the clock turned back, but the British people voted to leave the European Union and we must respect their decision.

When we talk about the threat that a hard border could pose to the peace process, I look at what the Irish Government say. I hear the Irish Prime Minister saying very clearly that even in the event of a no-deal outcome, there will not be a hard border between Northern Ireland and the Irish Republic. That is the stated position of the Irish Government, and it is the stated position of the Government of the United Kingdom, so where is this hard border coming from?

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

We need to be clear that when people say that the Union customs code must be applied and WTO rules must be applied, yes, they are right, but that is in order to provide confidence that checks are being made. They do not have to be made at the frontier—they can be made away from it—so there is no need for a hard border in Northern Ireland.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Report stage: First Day: House of Commons
Tuesday 16th January 2018 Commons Chamber

[Mr Grieve]

May I gently say to my right hon. Friend that if his analysis were accurate, no statute would ever have been enacted by Parliament, at any stage in its history, providing additional protections to people’s rights over and above the common law? That must be the end point, because the whole point about the Human Rights Act was that it added to protections enjoyed under the common law and did so in a way that was compatible with this House’s sovereignty. All I am saying to Ministers is that given that, for 40 years-plus, we have been involved in an international organisation that in practice has entrenched certain rights, it must now be for Ministers to come forward with a sensible proposal as to how those rights, in so far as the Government consider that they are in fact rights, will be protected in the future.

I am afraid that I disagree with my right hon. Friend the Member for Wokingham (John Redwood). Nice as it is to rely upon the Executive’s good will, 21 years in this House—heaven knows, my right hon. Friend has been here far longer—persuades me that that good will is not something that we should always rely on. I am afraid that I have seen a number of instances—particularly when I was in opposition, I might add—where it did not seem very wise to do so.

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

I agree with my right hon. Friend the Member for Wokingham (John Redwood) that in the end, because we are a sovereign Parliament, we are the only guarantor of our people’s rights. However, I am interested in what my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is saying about this matter, because the other danger that is lurking here is the fact that our courts may well decide that they have an obligation to maintain EU law even in the face of an Act of Parliament, and might strike down an Act of Parliament because, from reading the Bill, they see it as their obligation to retain certain principles of EU law. I like the declaration of incompatibility that my right hon. and learned Friend is suggesting as a very suitable compromise that enshrines what we have.

[Mr Speaker]

Order. This, if I may say so to the hon. Gentleman, is a mini-speech, with more emphasis on the speech than on the mini.

--- Later in debate ---

[Mr Leslie]

My hon. Friend absolutely nails the point and brings it home. She knows a great deal more about such issues than I do. The Government of the day do have a say on the rules and can sometimes effect reforms or block them.

[Mr Jenkin]

rose—

[Antoinette Sandbach (Eddisbury) (Con)]

rose—

--- Later in debate ---

[Mr Leslie]

I will take one last intervention, but then I must conclude.

[Mr Jenkin]

rose—

[Mr Leslie]

No, I have to conclude.

--- Later in debate ---

[Joanna Cherry]

Yes. What is sauce for the goose is sauce for the gander. It would not be very consistent if I thought that the British Executive should not get sweeping powers but the Scottish Executive should. All these arguments about curtailing Executive power apply to all Governments in these islands, not just to this Government. At the moment—my hon. Friend the Member for North East Fife (Stephen Gethins) will address these matters later—the Scottish Government are getting precious few powers in relation to these matters, and that is a grave concern. However, others will address that later.

The Solicitor General said he had listened with care to what was said about this issue in Committee, so what will Ministers do about it? Have they spoken to the judiciary about this? Have they taken on board the judiciary’s concerns about the scope of discretion granted to them and their fear of that, given recent politically motivated attacks on the judiciary? Have Ministers taken on board the concern expressed on both sides of this House and by many organisations outwith it about the broad scope of the powers currently afforded?

As I said, I have no doubt that these concerns will be raised in the Lords, but now is the time for the Government to tell this democratically elected and accountable House what they are going to do to circumscribe the exercise of Executive power in this Bill.

[Mr Jenkin]

I will speak only briefly to somewhat lament the fact that we have not made more progress on this clause 11 issue. Let me explain the background. The Public Administration and Constitutional Affairs Committee has taken an interest in this matter. We have taken an extensive interest in the inter-institutional relations between the different Parliaments of the United Kingdom and the different Administrations of the United Kingdom, which is a very undeveloped part of our constitution. We have the legal framework, but we do not have the practices, the culture or the institutional underpinning. The debate about the legislative consent motions in relation to this legislation has shown that up to a degree.

I pay tribute to my right hon. Friend the Member for Ashford (Damian Green), recently departed from the Government, who played a crucial role in making considerable advances on the question of how the legislative consent motions in support of this proposed Act of Parliament should be supported by the devolved Parliaments. It seems to me that the process has stalled somewhat, and it is unfortunate that we do not have the Government or others tabling amendments at this stage of the scrutiny of the Bill, when some of us had hoped that that would be the case. I am bound to say that it may reflect the fact that there is not yet a consensus, and it would be more important to reach a consensus on this matter than to table some amendments that do not reflect a consensus.

[Dr Philippa Whitford (Central Ayrshire) (SNP)]

I totally understand the wish, perhaps, to have had more discussion or debate before bringing amendments, but is that not an argument for putting back this debate, rather than that these amendments should come up in the Lords, where not just Scotland’s governing party but all Scottish MPs cannot take part in the debate?

[Mr Jenkin]

I do wish that the Scottish National party would take up its option of positions in the other place, so that it could—

[Dr Whitford]

MPs.

[Mr Jenkin]

No—so that the SNP could be represented in the other place, because I have no doubt that this matter will be addressed there. But I agree; I think that is unfortunate and that it would have been preferable for it to have been developed here.

[Dr Whitford]

Even if the SNP were in the Lords, it is the representatives here who are elected, and representatives from all Scottish parties are disfranchised by the amendment’s not being moved today.

[Mr Jenkin]

I accept that. Whatever compromise or proposals emerge in the other place, we can either debate them, vote on them and accept them, or we can debate them, vote on them, reject them and send back our own proposals to the other place at that point, so this House will have an opportunity to debate this very fully—just as fully as on Report.

This is, ultimately, a question of trust. We need to build up trust. Whatever the future holds for our United—or disunited—Kingdom, there need to be relationships of trust between the four Parliaments of these islands, the four Administrations of these islands, to enable us to make our way in the world as effectively as possible after we have left the European Union. That trust is still somewhat lacking in those relationships, and there may be one or two who want to foment distrust for their own political reasons. That makes getting this sorted out in an amicable way more challenging, but all the more necessary.

[Martin Whitfield]

Is not trust based on experience, and is not the experience that we have witnessed over the past few weeks disappointing in that building of trust?

[Mr Jenkin]

We have come a long way since the Government first published the Bill in draft last summer, when there were very peremptory conversations with the devolved Administrations and they felt very unconsulted about the Bill that had been published. There has been quite a lot of trust building and discussion, and the meetings of the Joint Ministerial Committee, which has discussed these matters and produced joint memorandums, shows that the trust is capable of building. I do think we have gone backwards a little bit in recent weeks, but I hope that the work that my Committee is doing will help. My Committee is going to Cardiff at the beginning of February and then we will be making an official visit, following an unofficial visit late last year, to Edinburgh, to build up these relationships and these understandings between the different Parliaments and the different Administrations. I do hope that in the end we can arrive at the right destination.

[Stewart Hosie (Dundee East) (SNP)]

I welcome the Committee Chair’s taking his Committee formally and informally to Edinburgh and I agree with what he says about trust, but I hope that he agrees with me and my party that trust would be ably demonstrated if the Government had tabled an amendment, committing to deliver all the 111 powers to the devolved Administrations.

[Mr Jenkin]

Trust is about what is offered to the other party. In this case, the Government have been consistently misconstrued. Given the drafting, clause 11 can be read as though the Government intended to hold on to the 111 powers for all time, withholding them from the Scottish Government, but the Government have repeatedly said that that is not the case. My Committee has also consistently said that the Government’s intention is that the devolved Administrations and Parliaments should finish with substantially more powers as a result of leaving the EU than they had before.

[Lady Hermon]

We have not had a functioning Assembly in Northern Ireland for a year—since January 2017. How exactly does the hon. Gentleman and his Committee expect to build up trust with the Northern Ireland Assembly? How is that going?

[Mr Jenkin]

It is very problematic. My Committee has repeatedly attempted to make an official visit to the Province, but that has not been regarded as expedient at this time. However, I sometimes run into the hon. Lady and I talk to other elected representatives of the Province; I hope that there is, at least within this House, trust and understanding between the democratically elected representatives on this matter. However, I invite the hon. Lady to a further conversation offline. We are continuing our inquiry and our work.

I make it clear to my party’s Front Benchers that I expect amendments to be tabled to clause 11 to clarify how long the powers should exist. Why is there not a sunset provision at the end of clause 11, so that it is seen clearly as a temporary expedient and not a final destination? Why is there not some qualification to the powers that have been retained, to show that they are for a particular purpose rather than just a blanket withholding?

As I said in Committee, it was instructive that even the work commissioned by the Scottish Parliament demonstrated that most of the powers being recovered from the EU—those with relevance to the UK single market, for example—are naturally reserved powers. We are dealing here with only a relatively small proportion, albeit on significant matters such as the environment, farming and fisheries.

This is an important test for the relationship between Whitehall and its counterparts elsewhere in the United Kingdom—and, indeed, with this Parliament, because the relationship between the Parliaments is just as undeveloped, possibly even less so, than the relationship between the Governments. The Governments have to work together, and on the island of Great Britain we have a single civil service that naturally works together. But the idea of the Parliaments of the United Kingdom working together is a completely alien concept and has not yet come into our political idiom at all.

Our Committee continues to work on the issue. I hope that we shall make some radical recommendations to help us learn from other, decentralised systems of government in other countries. This is in the DNA of their constitutions. We need to develop the same facility, so that after we leave the European Union and the powers have been devolved, the four parts of the United Kingdom work effectively and harmoniously together for the common good and the future of our country.

[Anna McMorrin (Cardiff North) (Lab)]

The biggest scandal about clause 11 is that the UK Government know that it is completely unacceptable; they are just not brave enough to admit it. Ministers, Tory MPs and civil servants have privately—and publicly, sometimes—acknowledged how extremely ill-advised it is to remove the power of the devolved Governments over devolved areas. This UK Government committed to introducing amendments on Report to address this, but where are they? Where is the Government’s acknowledgement that they have got this wrong?

--- Later in debate ---

[Stephen Doughty]

I should like to speak to amendment 5, a cross-party amendment tabled in my name and those of other hon. Members. I should also like to indicate my strong support for the Opposition Front-Bench amendment 3. In principle, I also support many of the other amendments in this group, although not, I am sorry to say, the Government amendments, which do not go far enough towards addressing the concerns that have legitimately been raised by the devolved Administrations in particular. It is always a pleasure to follow the right hon. and learned Member for Beaconsfield (Mr Grieve), who has made some excellent points, as has my colleague and friend, my hon. Friend the Member for Cardiff North (Anna McMorrin), who shares many of my deep concerns about this part of the legislation, which have not been addressed.

I hesitate to raise this point, but it is odd that we are discussing devolution and Brexit in this, the most important piece of legislation to face the United Kingdom and the devolved nations since the second world war, without the Secretaries of State for Scotland, Wales and Northern Ireland being present in the Chamber with us. I cannot see any of their junior Ministers here either. Perhaps they all have other important business to undertake. That seems rather remiss of them, given that we are considering such serious matters. I raised a point of order with you about this the other day, Mr Speaker, as did other Members. Much of the concern about this part of the Bill relates to promises and assurances that were given by the Secretary of State for Scotland, yet he is not here to account for himself. I have a great deal of respect for him, but these are serious issues that have been raised in good faith, and Ministers should be here to hear our concerns, and those of the devolved Administrations, if we are truly supposed to be bringing the United Kingdom closer together—as the Prime Minister claims to want to do—rather than pushing it apart.

[Mr Jenkin]

I count 10 Ministers on the Treasury Bench, so it is a little churlish to say that the Government are somehow under-represented when I can see only four members of the Opposition Front-Bench team. I think that says it all. This Government are listening hard to what the hon. Gentleman is saying even though he is being rather tedious.

[Stephen Doughty]

I do not normally respond negatively to the hon. Gentleman, but he fundamentally misunderstands my point. I did not say that Ministers were not here and listening; they clearly are. I can see the Minister for Africa, a Health Minister, the Skills Minister, Brexit Ministers and the Leader of the House, but where are the representatives of the Departments that are supposed to be doing the frontline discussions with the devolved Administrations? They are not here. [Interruption.] The hon. Member for Norwich North (Chloe Smith), a former Northern Ireland Minister, is also here, but I think she moved in the reshuffle. [Interruption.] She might be at the Cabinet Office—that is wonderful to hear—but where are the relevant Ministers? They should be listening, because what is the point of their being in their roles if they are not taking part in debates such as this?

Moving on, we had a lengthy and technical debate in Committee, and I do not want to repeat all the detailed arguments; I intend to focus on the principles that are stake. Fundamentally, this is about respect. The hon. Member for Harwich and North Essex (Mr Jenkin) spoke about trust, and it is also about trust. It is about respect for Wales, Scotland and Northern Ireland and for democracy in a wider sense, because the powers that the legislatures of Wales, Scotland and Northern Ireland now have are the result of several referendums, several elections, detailed debates and consideration, and a great number of Acts. This is about respect for the devolution settlement and, ultimately, for the Union. I made an election promise to stand up for Wales alongside many of my Welsh Labour colleagues, and I wanted to raise our concerns today because they are so serious.

I have not re-tabled all the amendments that were tabled in Committee, because we have limited ability to consider them at this stage, but I live in hope that the new Cabinet Office Minister and the Government will work to address many of the concerns. However, I have no doubt that Members of the other place, where we have ex-First Ministers, distinguished former Ministers and Members who have served in devolved Administrations, will look carefully at the detailed concerns that were raised in Committee, at statements from the Scottish and Welsh Governments about the deficiencies in the Bill as it stands, and at the Government’s failure to address the issues, even in the limited set of amendments that they have tabled for consideration on Report.

I share the serious concerns about clause 11 and the lack of UK-wide frameworks and mechanisms to address many things, which reflects the wider complexity in this endeavour that we are rolling ahead with. We heard about Anguilla earlier on, and who would have thought that that would be a concern? There is so much detail in the complexity of the integration of our relationship with the European Union that the Government simply have not given enough it attention. Whether someone voted leave or remain, trying to address some of the issues is only in the country’s interests.

The White Paper of March 2017 claimed that there would be a significant increase in the decision-making power of the devolved Administrations and that former EU frameworks would be subject to decisions by democratically elected representatives of the United Kingdom. That clearly is not the case with this Bill as it stands. We have heard that there are 111 powers, but we are supposed to just take it on trust that all of them will transfer when the UK Government have repeatedly attempted to undermine the devolved Administrations. I raised that during the passage of the Trade Union Act 2016 and when discussing the Agricultural Workers Board. There is a litany of examples of when things end up in the Supreme Court or in complex disagreements, instead of being addressed in the first place.

The Secretary of State for Scotland suggested that amendments would be made at this stage, but we have not seen them. They have obviously become caught up in some shenanigans that were partly dealt with in the reshuffle. The situation is greatly disappointing, not least because the amendments that were drafted by the Welsh and Scottish Governments that were tabled as cross-party amendments by me and many other hon. Members were proposed in good faith. They were not about stopping Brexit or trying to wreck the Bill; they were serious, well meant and well intentioned and tried to address the serious concerns about the provisions in the Bill. Indeed, we know those concerns are shared by many Conservative Members. It is a shame that the hon. Member for East Renfrewshire (Paul Masterton) has left his place, but he said in Committee that

“clause 11, as drafted, is not fit for purpose and must be changed. It does not need to be tweaked a little; it needs to be amended and replaced with a new version.”—[Official Report, 4 December 2017; Vol. 632, c. 731.]

--- Later in debate ---

[Stephen Kerr]

The hon. Lady is describing the attitude of the Welsh Government, which in many respects has been more hawk than dove on these matters. I have no doubt that that is for the Labour party’s political purposes in Wales, as such things are for the SNP in Scotland.

[Mr Jenkin]

It would be helpful if the Government gave an assurance today that in the event that there is no agreement with the Scottish or Welsh Governments, they will still amend clause 11—unilaterally, if necessary—to ensure that its effect is ameliorated as reasonably as possible. If the Scottish and Welsh Governments refuse to agree to that, it will be a problem for them and not for this Parliament.

[Stephen Kerr]

I completely agree with my hon. Friend. I believe that we must not be foolishly optimistic but realistic. When SNP Ministers talk as positively as they have, which is a different sound from the one that we hear from SNP Members here, then we have every reason to believe that wise heads—adult heads—will have sway and there will be an agreement.

I repeat—I do not want this not to be heard—that the Government made a clear commitment to the House on the amendments to clause 11, and I took those commitments at face value. As a Conservative Member, I never want to get to the point where I cannot take commitments given to me by right hon. and hon. Members at face value, because I hope, frankly, that they can continue to trust commitments that I might make to them. I really do want to understand why we have arrived at this point. I am afraid that there is a point of principle and accountability involved in answering these questions. What happened in the Departments in the past few weeks and months? Did they somehow lose focus? Were we not clear enough about what our expectations were?

I share with the House a concern that has resurfaced time and again since I was elected as Member for Stirling: since the devolution settlement UK Governments of all flavours have tended to devolve and forget, and that is a very dangerous practice. Again, I appeal to the Government to consider the appropriate machinery that creates the means by which our Governments work together, because that is what my constituents want. They are tired of the voices of conflict that they hear regularly in Scotland. They want us to be conciliatory. They want us to work by consensus and through collaboration.

When the devolution settlements first went through, when Labour was in power, there was a fashionable term that is still appropriate—“sofa government”. With a Labour Prime Minister in London and Labour First Ministers in Edinburgh and Cardiff, it was all very cosy, and so there was no need for any of the machinery that I am describing. In fact, one of the Scottish Labour leaders described their party in those days as the “branch office” of the party in London. By contrast, we as Unionists should believe in and work to the principles of partnership, and I believe that that is possible.

The reason behind amendments to clause 11 was to strengthen devolution and by doing so strengthen the Union. The nationalists will always create their narrative of grievance and scream “power grab” at every imagined opportunity. A strong amendment would have pulled the rug from under their squalid argument. It would have shown them up as the creators of grievance rather than giving grievance a voice, which we are hearing today.

Let me touch briefly on the rather weak amendments being offered up by the Opposition parties. The SNP amendment has no chance of passing and does nothing to address many of the concerns that Conservative Members have. The Labour amendment is well-intentioned but poorly drafted, and will only make room for legal wrangling and uncertainty. Not only that, but it shows no understanding that devolution in the UK is asymmetrical. The Scottish, Welsh and Northern Irish Parliaments are very different creatures, and there will undoubtedly be a need for frameworks that cover different parts of the United Kingdom and not just whole-United Kingdom frameworks.

For the good of Scotland, any powers that are returning to the UK from Brussels that are not reserved must, by definition, be devolved. I accept that UK frameworks are required. They can pragmatically solve problems, and they should do so through an equal partnership where all sides—Cardiff, Edinburgh, London and Stormont —can come together to solve problems and to share ideas. This is pragmatic partnership building. It is Unionism at its best, and even the enlightened nationalists seem to sign up for this. Everyone seems to agrees with it, so again I am left wondering why we would allow this Bill to leave this House and go to the other place without a suitable amendment.

I make no bones about it: it sticks in my craw to think that unelected Lords will make the vital amendments to this vital constitutional Bill. It is not really good enough, and as a Member of the House of Commons I hang my head to think that we have somehow dropped the ball. The Bill will leave this House unamended and in an unsatisfactory state, and we are now dependent on unelected Lords to do our job for us.

--- Later in debate ---

[Stephen Gethins (North East Fife) (SNP)]

I will speak to amendment 6 in my name and that of hon. Friends and colleagues. It is crucial in protecting the legislative competence of the Scottish Parliament and the Welsh Assembly. I am grateful for the cross-party support, but most of all I want to acknowledge the officials in the Welsh Assembly Government and in the Scottish Government who worked together to produce good amendments that we can support on a cross-party basis. We were able to introduce them in Committee and to reintroduce them on Report. I have absolutely no idea why the might of the UK civil service has been unable to do so for either stage. At this stage of the debate, I hoped to have the opportunity to debate the amendments promised to us by the UK Government to amend clause 11. I know that the fact that that has not happened has been a deep disappointment across the Chamber.

It is somewhat startling that amendments have been tabled that appear to be based on a presumption that clause 11 remains the same. That is why we cannot back those minor amendments. We were also told that the amendments had been tabled without consulting or agreeing with the devolved Administrations. We have heard a great deal about consultation and agreement, but I have no idea how we can strike an agreement on amendments without first seeing them; we have not even seen them. Members of the Scottish Government, and, I understand the Welsh Government, have not seen them either.

Unfortunately, the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith) is not in his place, but on a proposal about EU nationals today from the Commission he remarked that the Government should just smile and do nothing. It would appear that the Government are taking half that advice because we are not seeing that many smiles.

We have heard a great deal from the Scottish Conservatives about their unhappiness with their own Government. I wonder whether they will join in the opposition tonight and vote for the amendments that we have tabled, or vote for Labour Front Benchers’ amendment 3, which we do not think is perfect, but it is better than what we have and we will support it. With the Scottish Conservatives and the Opposition, we have a majority in this place. That is a powerful voice that we could have here. Will the Scottish Conservatives vote with us, or will they be yet more Lobby fodder willing to prop up a failing and faltering UK Government who do not keep their promises?

[Mr Jenkin]

Will the hon. Gentleman give way?

[Stephen Gethins]

I am going to make some progress.

On 6 December, the Secretary of State for Scotland was asked by MPs across this House about the amendments to clause 11. He said:

“The answer is that it will happen on Report”—

the stage we are at now. He added:

“We have been very clear about this”—

terribly clear it would seem—

“The Committee stage is about listening and adapting to issues…we will table amendments to clause 11.”—[Official Report, 6 December 2017; Vol. 632, c. 1021.]

They have not. Now we are at the stage where this will go to the House of Lords. It is a democratic abomination that the Scottish Parliament will have less of a say, and this House consequently will have less of a say, than the House of Lords. The Scottish Conservatives seem to be embarrassed about that. I wonder whether they are joined by anybody else who is even remotely embarrassed.

Voting by Prisoners

Bernard Jenkin Excerpts

Thursday 10th February 2011 Commons Chamber

[Mr David Davis (Haltemprice and Howden) (Con)]

I beg to move,

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

The motion stands in the names of the right hon. Member for Blackburn (Mr Straw), my hon. Friend the Member for Esher and Walton (Mr Raab), my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friends the Members for Kettering (Mr Hollobone) and for Basildon and Billericay (Mr Baron) and, of course, myself.

I thank the Backbench Business Committee for giving us the opportunity today to have this debate. There have been many important debates in this slot, but I lay claim to this one being unique, because it gives this House—not the Government—the right to assert its own right to make a decision on something of very great democratic importance, and to return that decision to itself.

The motion before the House about prisoner votes splits cleanly into two parts. First, is the requirement to give prisoners the vote sensible, just, right and proper? Secondly, who should decide? Should it be the European Court of Human Rights, or this House on behalf of the British people?

Let me start with the substantive question: should prisoners be given the vote? I yield to no one in my commitment to the defence of the ancient freedoms and rights of this country, and I hope the House accepts that, but there is an important point about not confusing the rights that are properly held by everybody who is a British citizen or who lives in our country with those much more circumscribed rights that are given to prisoners. Prisoners of course have rights—the right to be treated decently, not to be ill treated, to be fed, and to be kept warm, given shelter and clothing—but those rights do not extend to the same rights of a free British citizen.

When someone commits a crime that is sufficiently serious to put them in prison, they sacrifice many important rights: not only their liberty, of course, but their freedom of association, which is also guaranteed under the UN charter of human rights and the European convention on human rights, and their right to vote. The concept is simple and straightforward: “If you break the law, you cannot make the law.”

The European Court of Human Rights argues that that is a blanket rule—that is its rather pejorative term. But, actually, that is untrue, and the Court is ill informed in saying so, because three categories of prisoner are excluded from losing the right: remand prisoners, contempt of court prisoners and fine defaulters. None of those loses the vote, and for different reasons. The remand prisoner does not because they have not been convicted or sentenced, so it is inappropriate for them to lose it until they are sentenced. That is a logical exception. The other two do not lose it because their crimes are below the threshold of seriousness that we judge means that they lose the civic right to vote.

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

I congratulate my right hon. Friend on obtaining the debate and on seizing upon the issue. I served on the Centre for Social Justice task force on prisons, chaired by our former friend Jonathan Aitken, and we discovered absolutely no demand from prisoners for that so-called right. Indeed, it was never an issue in the British prison system until the lawyers got hold of it through the European convention on human rights, and to that extent it is completely irrelevant to the real issues that face our prison system and the prisoners in it.

[Mr Davis]

I could not agree more with my hon. Friend. Indeed, if there were an argument that giving prisoners the vote would cut recidivism, cut re-offending rates and help the public in that way, I would consider the matter, but giving prisoners the vote would not stop one crime in this country, and that is after all the point of the justice system in the first place.

Let me return to the main text. Other prisoners do lose the vote, but we must understand that for someone to be sent to prison in this country in this day and age requires a very serious crime or series of crimes. There are convicted burglars and convicted violent criminals, who have never been to prison, walking the streets today, so there is a very serious threshold.

--- Later in debate ---

[Mr Straw]

I will give way in a couple of seconds, but I will just make some progress.

The retired Law Lord, to whom the right hon. Member for Haltemprice and Howden referred, has recently said that the Human Rights Act could be

“a perfectly serviceable British Bill of Rights”.

That, in essence, is what it is. The Act was expertly drafted. It gave the courts the power to declare primary legislation incompatible with the convention, but no power to strike down that legislation.

[Mr Jenkin]

rose—

[Alan Johnson (Kingston upon Hull West and Hessle) (Lab)]

Will my right hon. Friend give way?

--- Later in debate ---

[Mr Straw]

I agree entirely with my right hon. Friend, and I thank him for his support. Like any former Home Secretary, he knows how difficult but vital it is to balance rights, liberties, duties and obligations in that very high office.

[Mr Jenkin]

rose—

[Mr David Ruffley (Bury St Edmunds) (Con)]

rose—

[Mr Straw]

I give way to the hon. Member for Harwich and North Essex.

[Mr Jenkin]

I am listening carefully to what the right hon. Gentleman is saying about the margin of appreciation. I think that we are in danger of overselling that as a solution, because the problems with our current relationship with the convention are to do with the drafting of the convention and how the Court interprets its words. Geoffrey Robertson, QC, who is no slouch on human rights and is currently representing Julian Assange, explained in the article “Why We Need a British Bill of Rights”:

“The European Convention also failed to include the rights Parliament won by the ‘Glorious Revolution’ in 1689”.

He went on to state:

“There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights.”

He also stated:

“The Convention is in some respects out of date.”

Does the right hon. Gentleman agree with those words? How are we going to address those problems?

[Mr Straw]

The hon. Gentleman is taking us into wider territory. I happen to think that the problem is not the plain text of the convention, but the way in which it has been over-interpreted to extend the jurisdiction of the European Court. I will come on to that point in a moment. I do not, however, subscribe to the view that the 1951 convention is the last word on what should be in a Bill of Rights. I share Lord Hoffmann’s view that it is a very good starting point. There is a wider issue—a rabbit hole I do not intend to go down if the hon. Gentleman will forgive me—about whether we should have a written statement of our key constitutional rights. I think that we should, and that the sovereignty of Parliament should be right at the top of it. However, that is a separate point.

--- Later in debate ---

[Mr MacShane]

The hon. Gentleman takes me on to my next point. In other EU countries, prisoners can vote according to the sentence. In France, a judge adds a loss of civic rights to sentences for serious crimes, which is a compromise that satisfies the European Court of Human Rights and could easily be introduced here. However, sadly we are turning out backs today on more than a century and a half of prison reform. Retribution seems to be the order of the day for those who commit crimes. My view is that although someone may enter prison as a criminal, we should hope that they leave prison as a future citizen. Allowing people to take part in, think and read about, and ultimately—for non-serious cases—vote in elections would help the osmosis of turning criminals into future citizens.

[Mr Jenkin]

rose—

[Mr MacShane]

I will not give way because of this five-minute limit.

--- Later in debate ---

[The Attorney-General (Mr Dominic Grieve)]

I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and the right hon. Member for Blackburn (Mr Straw) on securing this debate. My right hon. Friend quoted my belief that this was a subject that needed debate. That was something I said in opposition, but it is a view that I continue to hold in government. I am therefore delighted that the House at last has an opportunity to have this debate. If I quipped the right hon. Gentleman, I am grateful to him for having facilitated it now that he is freed from the shackles of Government.

If the House is to have the debate that I think can help to inform this tension between ourselves and the European Court of Human Rights, it is important that as many Members as possible participate. I note, therefore, that the Government Benches are well crowded; I am sorry, however, that, for reasons on which I cannot speculate, the Opposition Benches seem to be, with a number of notable and eminent exceptions, rather bare. That might be a problem later in terms of the impact that this debate may have. From that point of view, the contribution of the right hon. Member for Rotherham (Mr MacShane), even if many Members disagreed with it, was nevertheless very valuable.

My reason for speaking at this stage of the debate, with the leave of the proposers of the motion, was to try to provide some assistance to the House in explaining the legal considerations relating to this complex, difficult and extremely controversial issue. As the House is aware, there will be a free vote for Government Members, so that the Back Benchers can express their views. Ministers will abstain. The Government believe that the proper course of action will be to reflect on what has been said and think about what proposals to bring back to the House in the light of the debate. The Government are here to listen to the views of the House, which are central and critical to this debate, as was acknowledged in the Hirst case and as was the subject of the critique that I raised earlier about the fact that we have not had this debate before. I look forward to taking on board and considering all the points raised, and to doing my best, as far as I can, to join the debate and assist the House.

[Mr Jenkin]

I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?

[The Attorney-General]

First, I would say this to my hon. Friend. I am very respectful of the powers of this House and, having been a Member of it for 13 years, consider it to be very important. As he will also be aware, it is Parliament that is sovereign. I hope that he will excuse my making that delicate point. The Queen in Parliament is sovereign, and that includes the ability of both Chambers to legislate and to enact primary legislation. We are dealing with an international treaty. That international treaty was signed by the United Kingdom Government under the royal prerogative and was laid before both Houses of Parliament for their consideration. The rule that has been long established in this country is that once a treaty has been ratified by the United Kingdom Government through that process, the Government and their Ministers consider themselves to be bound by its terms. Indeed, as the right hon. Member for Blackburn will know, the ministerial code specifically says that that is the case, and the new ministerial code says it in exactly the same way as the old one did. From that point of view, although my hon. Friend is absolutely right, that does not remove the necessity for the Government to be bound by their treaties and international obligations.

--- Later in debate ---

[Mr Jenkin]

I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?

[The Attorney-General]

It is certainly true that our international legal obligations may alter by virtue of what Parliament has enacted, but the current position is that we have an international obligation that, if I understood correctly from what they said, is not one from which, in its principles, my right hon. Friend the Member for Haltemprice and Howden or the right hon. Member for Blackburn would wish to resile. We are bound by it as Ministers of the Crown. However, if my hon. Friend will bear with me, I will come to that in a moment.

I repeat the point that the Grand Chamber in the Hirst case commented on the lack of any substantive debate in Parliament. It must be the case, therefore, that the existence of a substantive debate—indeed, we may have to have more than one substantive debate on this issue—will be helpful to the process of finding a way through the problem that is exercising many Members of this House. However, although Members are fully entitled to express their disagreement with the judgment of the European Court—indeed, I have done so myself: I said that I consider the judgment in the Hirst case to be an unsatisfactory one, for precisely the reasons, which I will not repeat, that the right hon. Gentleman and my right hon. Friend articulated—the fact that we may be in disagreement does not in itself solve the problem.

In order for the views of this House to be helpful, we need to demonstrate that we are engaging with the concerns of the Court and that we are not just expressing our frustrations—although I have to say that on occasion I have felt very frustrated on this issue in the last few years, and actually rather angry. Through a dialogue about what the House considers to be proper and reasonable in respect of prisoner voting, we have to see whether we can bring our weight to bear as a legislature in the development of the jurisprudence of the Court. That will give us the best possible chance of winning the challenges that may arise thereafter. As we know, given the litigiousness of those who think that there is a gravy train on which they might be able to climb, we can guarantee that, whatever we do, there will be legal challenge to it that will go back to the European Court of Human Rights for determination.

--- Later in debate ---

[Chris Bryant]

Again, I am grateful to the Attorney-General, as I agree with him; my reading of the Greens and M.T. case is wholly consistent with his in relation to judicial oversight. That was one of the questions that we raised in the debate in January, and I received responses from the Minister who took part in that debate only at 8.31 pm yesterday.

I reiterate that the Government have made various statements over the past few months. The Lord Chancellor made one yesterday on the radio, the relevant Minister made one in the House of Lords and the Minister who responded to the Adjournment debate in Westminster Hall made one then. Those statements have not been consistent with each other, but they have adverted to legal advice. It is the tradition of this House that when one relies on evidence, that evidence is published.

So what is the Government’s policy? What is the absolute minimum that they believe the UK has to deliver to meet its treaty obligations?

[Mr Jenkin]

rose—

[Chris Bryant]

I hope that the hon. Gentleman does not mind if I do not give way, because others want to speak and I ought to be drawing my comments to a close.

Would it be sufficient for the Government to present proposals—[Interruption.] I would be grateful if the Attorney-General would listen, just briefly. Would it be sufficient for the Government to present proposals—introduce legislation—but for Parliament not to agree them? Would that, in some sense, satisfy the Court? What do the Government believe will happen if the House supports the motion this afternoon? How have the Government arrived at the compensation figure? Previously it has been said that £160 million-worth of compensation will be entailed, but I gather that last night the media were briefed that the compensation figure will be £143 million. I understand that that has been arrived at on the basis not of the Attorney-General’s legal advice, but of advice given to the Government by others. Will that be published? Can he explain how the compensation would be enforced, given that all applications for compensation to the county court should surely be struck out by dint of section 6(2) of the Human Rights Act 1998, which reinforces parliamentary sovereignty? Indeed, is there not a claim in the High Court today from the Treasury solicitor to that effect?