Leaving the EU: No-deal Alternatives

Bernard Jenkin Excerpts

Wednesday 21st February 2018 Westminster Hall

[Antoinette Sandbach]

I certainly do recall that type of message. It was one of the big messages that was being sent out: our prosperity would not be threatened, we would be able to stay in the single market and we would have the “exact same benefits” as before.

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

I am intrigued because I thought the whole basis of my hon. Friend’s very fear-based analysis of Brexit is that the EU wants to stick tariffs on trade between the UK and the EU. Which leader around the European Union has said that they want to put tariffs on trade between the UK and the EU?

[Antoinette Sandbach]

The consequences of a WTO—

[Mr Jenkin]

Not one!

[Antoinette Sandbach]

No. The consequences of a WTO Brexit mean that we fall back on rules that require the imposition of tariffs, unless we waive them as a most favoured nation status for all other countries. That would then expose our manufacturing, farming and other industries to competitors with far lower standards than us, some of which have far cheaper labour costs, when we have very high quality products in this country. That is the consequence of WTO terms.

Leaving the EU: Economic Analysis

Bernard Jenkin Excerpts

Tuesday 30th January 2018 Commons Chamber

[Mr Baker]

We are carrying out the usual inquiries into who leaked the report. The hon. Lady is absolutely right that past economic predictions have been very poor, and poor for good reasons on which I would love to elaborate on another occasion. I have set out that particular critique of even the Bank of England’s forecasts, and she is absolutely right that, as I said earlier, we should have a healthy scepticism.

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

We would be in a strange position if Governments had to publish every bit of advice to Ministers and every bit of analysis that they profoundly believed to be wrong. The last Labour Government did not do that, and the Minister should resist publishing this analysis if he believes it is not in the national interest to do so. I also advise him that people are trying to divert the Government’s direction on Brexit—there is absolutely no doubt about it. Will he look into why this particular document was leaked on this particular day, the day that the withdrawal Bill has its first debate in the upper House?

[Mr Baker]

My hon. Friend, the Chairman of the Select Committee on Public Administration and Constitutional Affairs, makes an important and authoritative point about the conduct of government. Opposition Members would do well to reflect on how they would wish to govern the country if, God forbid, the electorate should ever give them an opportunity to do so.

All of us in this House need to have an eye on the long-term functioning of our democracy and our constitution. With that in mind, I hear what my hon. Friend says. There is clearly a campaign to overturn the referendum result, and it can be seen at work in the media and in this House. We will certainly bear in mind what he says.

Leaving the EU: Implementation

Bernard Jenkin Excerpts

Monday 29th January 2018 Commons Chamber

[Mr Walker]

The Prime Minister has been clear that we do not want to be in some form of indefinite purgatory throughout the process. We need to take the opportunities for the UK that come from having an independent trade policy, and we have set out to provide continuity and certainty for our businesses through the implementation period. That continuity and certainty will be all the greater if we are clear about the future framework by the time we enter the implementation period.

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

I commend my hon. Friend and, indeed, the Government for refusing to break faith with the British people by insisting that we shall leave on 29 March 2019 and that, at the end of any implementation period, as the Prime Minister told the House on 11 December, the United Kingdom will have full regulatory autonomy and be free to do our own trade deals with third countries.

[Mr Walker]

I am grateful to my hon. Friend. It is very important that we respect the referendum, which of course Members of this House voted for in huge numbers and then voted to respect. The challenge for the Opposition Front-Bench team is to reconcile its ever-changing positions with that decision.

Leaving the European Union

Bernard Jenkin Excerpts

Monday 22nd January 2018 Westminster Hall

[Paul Scully]

There is some legal opinion that says that. The hon. Lady talks about the weight of legal opinion, but I do not agree that it is the weight of legal opinion. There are arguments about it. It is such a short paragraph, and it is pretty clear to my mind that we cannot unilaterally revoke article 50.

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

Is it not ironic that the lawyers who brought the case under the guidance of Gina Miller to require Parliament to enact the article 50 notification decided that article 50 was not revocable? The entire case was premised on that.

[Paul Scully]

I thank my hon. Friend for making that powerful point.

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[Antoinette Sandbach (Eddisbury) (Con)]

The lawyers conceded that point, but it was not directly relevant to the case that was being argued.

[Mr Jenkin]

It was the premise of the judgment.

[Antoinette Sandbach]

I hear the chuntering from my hon. Friend, but the reality was that it was not the issue that was being decided on. If there was any merit in that point in the judgment, it was clearly obiter dictum, as it is called.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 8th sitting: House of Commons
Wednesday 20th December 2017 Commons Chamber

[Mr Leslie]

Governments would normally be expected to have information and facts, with evidence being collected and presented and with an assessment made based on information that has been analysed and digested in a professional way, but it appears that, although we were told they exist, the impact assessments do not actually exist but are sectoral analyses. What is the difference between an impact assessment and a sectoral analysis? Well, we have been discussing that for quite some time.

Returning to EU retained legislation, the right hon. and learned Member for Beaconsfield rightly pointed out that we have lived with important legal understandings, such as on equalities law and environmental law, for a number of decades. Those understandings have been tenets of our expectations of the civilised society in which we live. Of course, they will now be transferred from European law into UK law. If they had originated in this House, they would have been enacted in primary legislation and any changes would have had to be made through primary legislation. But the Government’s proposal is to take this new category of EU retained law and bring it into UK law, and it will not have the same status as primary legislation. In many ways, it will be repealable or amendable, often by secondary legislation—by statutory instrument. This is not a point about Brexit; it is about the process of transposition. It is important that the public know what is going on when we are doing this. If a transfer is taking place, information should be set out in the explanatory notes, not just about the technical details, but about the weight that those legal rights will have once they come back into UK law.

There are a number of other aspects to this—

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

The hon. Gentleman is making an interesting and relevant point, although it is of course true that all this legislation came in via secondary legislation in the first place and Parliament will have considerably more control over the secondary legislation that amends it than we currently have over the method that created it. I would imagine, as I am sure he does and the Government do, that Acts of Parliament will become more important, particularly if we want to make sure that this is not challengeable in the courts, as secondary legislation is much more vulnerable to challenge through the courts than primary legislation.

[Mr Leslie]

Yes. Although we disagree on many things, I think we can agree that if we are going to do this exercise, it needs to be done thoroughly and robustly, making sure that the intent of Parliament and the laws we are transposing are robust enough to withstand the test of time. Having explanatory statements to accompany those is an important development that has helped us in our legislative process recently. If we are going to have a sifting committee—it is not really a sifting committee; the procedures committee will be doing this—looking through all these statutory instruments and picking out which ones it thinks should not be passed through the negative procedure, this explanatory process ought to be in place to help hon. Members figure out which of these hundreds or even thousands of aspects of legislation are important enough to flag up to hon. Members more widely. That is a small point but it needs making. Other issues arise relating to “tertiary” legislation and the powers the Bill is giving to agencies and regulators to make, or to amend or remedy, laws. Again, I would like these things to be flagged up in plain English, wherever possible, so that parliamentarians can know about them. In essence, new clause 21 is about transparency, clarity and shining a light on this complicated bandwidth of activity that is about to hit all hon. Members, and that is important.

The only other point I wanted to make on this group—

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[Mr Jenkin]

Clause 13 is confined to the publication and rules of evidence. The schedule itself is about publishing what is retained direct EU legislation. Can my right hon. and learned Friend describe to me what latitude the Government would have that could do so much damage, or be so capricious, within the powers of the Bill, and can he give an example of what would be so damaging and outrageous?

[Mr Grieve]

As I have explained, this is a Henry VIII power, so within the period in which this power is operational—this is on my reading, but perhaps my hon. Friends on the Treasury Bench will correct me—a Minister of the Crown may, by regulation, essentially change the way in which retained EU law is handled by requiring

“judicial notice to be taken of a relevant matter, or…provide for the admissibility in any legal proceedings of specified evidence of…a relevant matter”.

That is a very extensive power. Effectively, it gives a power to rewrite how legislation should be interpreted.

[Mr Jenkin]

Give us an example.

[Mr Grieve]

The examples could be endless—[Interruption.] Well, if there is an established rule by which, for example, EU law is currently being applied, a Minister could say that, in future, that should be disapplied because notice should not be taken of its previous application.

[Mr Grieve]

I do actually agree with the hon. Lady and, I am afraid, disagree with my hon. Friend the Member for Harwich and North Essex (Mr Jenkin). Of course, membership of the EU implies a pooling of sovereignty, but the decision-making process by which law has been created in the EU is one that is done not by faceless bureaucrats, but by the Council of Ministers. There is absolutely no doubt about that at all—

[Mr Jenkin]

In secret.

[Mr Grieve]

I do not wish to be dragged off into some new polemical argument. My hon. Friend says in secret, but, if I may say, we are signed up to hundreds of treaties other than that with the EU in which we pool our sovereignty to come to common positions with our fellow treaty makers.

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[Paul Blomfield]

No, I do not, and it is unfortunate that some people have been characterised in that way, as the right hon. and learned Member for Beaconsfield (Mr Grieve) and others were by some of their colleagues last week. If I can now make some progress—

[Mr Jenkin]

Will the hon. Gentleman give way?

[Paul Blomfield]

Well, while we are talking about extreme voices, I am happy to give way.

[Mr Jenkin]

There are right hon. and hon. Members who say they want to honour the result of the referendum, but who actually want the European Union to carry on controlling our laws. I call them Brexinos—people who want Brexit in name only. There may well be a majority of them in this House, but that would not be respecting the result of the referendum, would it?

[Paul Blomfield]

The hon. Gentleman is a good example of those who see conspiracy in any corner. I note the article he wrote in The Guardian on 8 October under the title “It’s a sad truth: on Brexit we just can’t trust the Treasury”. He went on to say:

“There is no intrinsic reason why Brexit should be difficult or damaging, but the EU itself has so far demonstrated it wants to make it so…it has co-opted the CBI…the City and…the Treasury to assist.”

Well, I think that the majority of Members take a more rational view.

The decision taken in 2016 was not a mandate for driving over a cliff edge with no deal or for having no transitional arrangement in place. It was not a vote for leaving all the agencies and partnerships from which we have benefited over the years and could continue to benefit or for turning our back on the single market, walking away from the customs union or—I say this with an eye on the contribution made in the last debate by the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), who is paying more attention to his phone than to the debate—turning our back on the Court of Justice of the European Union.

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[Mr Baker]

The hon. Lady is trying to pre-empt some of my remarks. If she will bear with me, I will come to that.

A crucial point is that the Bill does not determine whether the UK leaves the EU; that is a matter of international law under the article 50 process. However, it is important that we have the same position in UK law that is reflected in European Union treaty law. That is why the Government have signed these amendments, and I was glad to do so.

I can assure the Committee we would use this power only in exceptional circumstances to extend the deadline for the shortest period possible, and that we cannot envisage the date being brought forward. As my right hon. Friend the Prime Minister has said many times, we and the EU are planning on the UK leaving the European Union at 11 pm on 29 March 2019.

[Mr Jenkin]

I apologise to the Committee for having had to be in the Liaison Committee for the last couple of hours and for missing much of the debate. I thank my hon. Friend for accepting these compromise amendments. The Government are, in fact, accepting a very significant limitation on the powers they had in the original draft of the Bill. If we are interested in the sovereignty of Parliament, we are interested in limiting the room for Government to set arbitrary dates without any controls over them whatever. That is what existed in the Bill before. There is now proper control by Parliament of the date in the Bill.

[Mr Baker]

I am grateful to my hon. Friend. I would also like to say thank you to him for the role he has played in bridging the spectrum of opinion on this issue.

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[Mr Baker]

I am most grateful to my right hon. and learned Friend. I know he is going to take this matter up further with my hon. and learned Friend the Solicitor General. I did actually just make two points, but perhaps I structured them ambiguously.

The third point is that in the event of a strike-down there would be no existing power under which fresh regulations could be brought forward, so it would be necessary to bring forward a fresh Act of Parliament or to rely on the remedial order-making power within the HRA itself. I should say that the remedial order-making power within the HRA was not designed to be the default means by which incompatible legislation is remedied or to deal with the policy changes that could be required.

The remedial order-making power may only be used if there are compelling reasons for doing so and it is targeted at removing the identified incompatibility. If wider policy change were needed following a finding of incompatibility, a fresh Act of Parliament would be the only means of doing that and we could be left with damaging holes in the statute book unless and until such an Act was passed. That is why the Government concluded that converted EU law should have the status of primary legislation in relation to the HRA, and that is why the Government will not be able to accept the two amendments.

[Mr Jenkin]

I wish to pick up on the important point raised by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). For the avoidance of doubt, will the Minister clarify that it is not the Government’s intention to set up retained EU law in UK statute in a manner that would encourage a UK court to strike down another primary statute? If that is the intention, may I suggest it might be something the Government will have to look at?

[Mr Baker]

My hon. and learned Friend the Solicitor General has just confirmed to me that we do not want that to happen. I am sure that that will be given further consideration, along with the issue of general principles that my right hon. and learned Friend the Member for Beaconsfield has raised.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 6th sitting: House of Commons
Tuesday 12th December 2017 Commons Chamber

[Mr Leslie]

It is almost an Alice in Wonderland “down the rabbit hole” concept: the notion that we are passing an Act that hands powers to Ministers to amend not just any other Act of Parliament, but the Act itself. It is completely ridiculous. I know that Conservative Members will say I am making the point because I am sceptical about Brexit or something, but this is a constitutional issue. It is about ensuring that Parliament is sovereign, and that Members of Parliament can override the executive and curtail excessive behaviour. I shall be astonished if clause 9(2) is still there after Royal Assent, because if the House of Commons does not deal with it, the other place will certainly have to do so.

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

I have some sympathy with the points that the hon. Gentleman is making, but why did he not raise these objections when his own party was passing legislation that could be self-amending in exactly the same way, without a sunset clause—for example, the Scotland Act 1998?

[Mr Leslie]

I am not sure whether there is anything comparable to the sweeping nature of the policy scope of a Bill that says that order-making powers can include powers to modify the Act itself.

[Mr Jenkin]

There is the Scotland Act!

[Mr Leslie]

If that is indeed the case, two wrongs do not make a right, but I do not think that any other provision is quite as extensive as this. The hon. Gentleman’s loyalty to the Government knows no bounds—he has to come to their defence, because it is important for someone to do so—but I think that, in this particular instance, even he may be slightly embarrassed by quite how far Ministers have gone.

Clause 7(1) states:

“A Minister of the Crown may by regulations make such provision as the Minister considers appropriate”.

The term “appropriate” is entirely undefined, and it is the only condition imposed on the Minister’s desire to address “deficiencies” in the law. The House of Lords Constitution Committee has said:

“This application of a subjective test to a broad term like ‘deficiency’ makes the reach of the provision potentially open-ended.”

The Government tabled amendment 391 to try to ameliorate some of the concern about that, but it barely constitutes a concession. It merely requires Ministers to make explanatory statements that provisions are “appropriate” in order to justify the order-making power. It is because it is so broad that I tabled amendment 65, which would at least shift the subjective threshold from “appropriate” to “necessary”. I believe that requiring Ministers to feel that a regulation is necessary would present them with a stronger test and a higher threshold. It would allow them to retain fairly broad powers, but I think that it would provide an extra safeguard. A Minister may think that something is appropriate without having to justify it, and I feel that we should expect more in a Bill such as this. The Constitution Committee has also said:

“We proposed that ‘a general restriction on the use of delegated powers’ could be achieved using ‘a general provision … placed on the face of the Bill to the effect that the delegated powers granted by the Bill should be used only so far as necessary to adapt the body of EU law to fit the UK’s domestic legal framework’”.

I followed that advice by tabling amendment 65.

Clause 7(2) implies that the scope of the Henry VIII powers are not exhaustive at all.

That subsection begins with the phrase:

“Deficiencies in retained EU law include (but are not limited to) where the Minister considers that retained EU law”

does x, y and z, and it goes on to set out a series of particular conditions.

The right hon. and learned Member for Beaconsfield (Mr Grieve) has also spotted this issue in his amendment 1, and this caveat does not have to be limited to the exceptions set out in clause 7. Again, that provision is too broad and gives too much power to Ministers. Ministers might well say, “Well, it’s not our intention to go beyond the list of prescribed areas in clause 7”, but the Bill as drafted does not constrain their successors; as I have said, there will, of course, always be further Ministers after the current ones have moved on.

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I do not wish to see my hon. Friend the Minister dragged to the Dispatch Box to answer in such a situation and, ultimately, I think that as the statutory instruments go through we will see growing confidence in the process. That will help the Government; it will help the House; and it will help the country to get through this enormous, colossal mountain of SIs.

[Mr Jenkin]

May I take it therefore that my right hon. and learned Friend is offering his services on this committee?

[Mr Grieve]

I am already the Chairman of another Committee of Parliament, and I think it might be undesirable to burden me with extra work. Indeed, there are plenty of other people in this House who are capable of doing this work. Obviously, if somebody wanted to ask me, I would give it consideration, but I am always conscious of being rather too thinly spread as it is, so I do not put myself forward.

EU Exit Negotiations

Bernard Jenkin Excerpts

Tuesday 5th December 2017 Commons Chamber

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

May I point out to my right hon. Friend what I know he will agree with: the consensus that we must deliver is the consensus that was delivered in the referendum vote last year; and that was not for some half-in, half-out solution now being advocated by Her Majesty’s official Opposition?

[Mr Davis]

My hon. Friend is of course right. The other thing we can say is that 85% of the Members of this House were elected on manifestos that said they would respect that referendum. [Interruption.]

EU Exit Negotiations

Bernard Jenkin Excerpts

Monday 13th November 2017 Commons Chamber

[Mr Speaker]

No, but the Secretary of State has the confirmation from the right hon. Member for Chingford and Woodford Green (Mr Duncan Smith), wittering from a sedentary position, that it was very good. He said it not once, but twice—that should satisfy the Secretary of State, I feel sure.

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

May I invite my right hon. Friend to remind the House that 498 right hon. and hon. Members voted for the withdrawal Bill, in the full knowledge that, two years after notification had been served, we would be leaving the European Union? Is it not a little disappointing that they seem to be backtracking on their commitment to honour their promises to the British people?

[Mr Davis]

My hon. Friend makes his point clearly. The simple fact is that everybody has known March 2019 is departure date ever since the article 50 Bill was passed.

Exiting the EU: Sectoral Analysis

Bernard Jenkin Excerpts

Tuesday 7th November 2017 Commons Chamber

[Mr Baker]

I think that the right hon. Gentleman has put the words “nothing of significance” in my mouth. I do not think that I have ever said that. We are saying to the House that this sectoral analysis does not contain quantitative projections of impact. As for the right hon. Gentleman’s final question, I think that is a matter for you, Mr Speaker.

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

The motion that the House passed last week without objection referred to

“the impact assessments arising from those analyses”,

in reference to the previous list. I can well imagine that these assessments are scattered around different Departments, and that different officials are looking at various bits of work and saying, “Does this count as part of one of these assessments or not?” I think it would have been unconscionable for the Government to come to the House and suggest that they were not going to comply with the motion or release this information, but may I suggest that there should be some private dialogue with the highly respected Chair of the Brexit Committee, on Privy Council terms, about how to resolve the matter without it becoming a matter of embarrassment that disrupts the negotiations?

[Mr Baker]

It is our intention to comply with the will of the House, but we cannot release what we do not have. We will bring forward the material that is appropriate, timely and up to date, and that will inform the Committee. Steps have already been taken to carry forward the appropriate meetings.

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.”

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[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.