Assisted Dying

Bernard Jenkin Excerpts

Thursday 4th July 2019 Commons Chamber

[Nick Boles]

I could not agree more with the hon. Lady. The truth is that this is not in any way an alternative to the best possible palliative care; it is a complement to the best possible palliative care. We want to ensure that all those who want to choose to live out their lives and die naturally—even through a horrific illness with horrific symptoms—are given every support to be able to make that decision. Unfortunately, we also know—and all the evidence suggests this—that there are some people for whom palliative care cannot help in those final moments, and it is of them that I am thinking.

What do we think of a law that criminalises otherwise law-abiding people, such as Ann Whaley, who are simply trying to act with love in accordance with their marriage vows and their conscience? What do we think of a law that forces people in the final months of a terminal illness to take desperate and even dangerous steps, which may cause even more suffering to themselves and to the people whom they love, in secret and without any safeguards or support? What do we think of a law that denies hundreds of innocent people dignity and control as their lives draw to a close and condemns them to extreme suffering instead? I will tell you what I think, Madam Deputy Speaker: it is a bad law and it should be changed.

However, the purpose of today’s debate is not to propose a new law on assisted dying, but to understand the effect of the current law on people suffering from terminal illnesses, on their families, on the doctors, nurses and carers looking after them, and on social workers and the police. It is only when we have fully understood all the different ways in which the current law impacts on the British people that we should consider returning to the question, last debated in 2015, of what kind of change in the law might be justified.

To that end, I have a request for my hon. Friend the Minister. We all understand and accept that laws such as these are matters of conscience and that it is for Parliament to initiate a change of the law, but Parliament’s ability to gather evidence is very limited. On behalf of those affected by such laws, and in honour of Geoff and Ann Whaley, I ask the Lord Chancellor and his boss, the Secretary of State for Justice, to initiate a formal call for evidence on the impact of our existing laws on assisted dying, so that Parliament can benefit from a comprehensive assessment of the facts when it next decides to debate and vote on a possible change in the law.

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

I am most grateful to the hon. Gentleman for giving way. I came into the Chamber in 2015 fully intending to vote for a change in the law. However, as I listened to the debate, although I was completely persuaded by the points that he is now making, I was unpersuaded that that was the right law or that the right people had been persuaded that it was the right law. What has changed between then and now that he thinks would bring the House to a different conclusion?

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[Martin Vickers]

I thank the hon. Lady for that intervention and I share those views.

Having spoken of the work of the hospice movement, I will take the opportunity to pay tribute to all those who work in, volunteer for and generously support the hospice movement, with a special mention for St Andrew’s in Grimsby, which is marking its 40th anniversary this year.

We all have to cope with the loss of loved ones, and such experiences raise—in the mind of any right-thinking person—the question of how to minimise suffering. If someone has previously indicated their wish to hasten their death, I acknowledge that it is extremely difficult, and a major moral dilemma, to say to them, “Sorry, that’s not possible.” However, I believe that any move to legalise assisted dying would be yet another step that lessened the value that we as a society place on human life.

The relationship between doctor and patient is crucial, and it could be compromised if the patient was anything other than 100% certain that the doctor was striving to maintain life. When we are old, weak and seriously ill, we need compassion and support, not the nagging doubt—

[Sir Bernard Jenkin]

I do not think this debate is about the sanctity of life, because the people who did not support the Bill last time believe it is legitimate to end a life early; the question is how to legalise it. It is not a moral question. On the point about the medical profession, plenty of evidence shows that people are acting in the grey area that my hon. Friend describes, leaving them with the questions he mentioned. That is not the issue either. The question is whether we can safely change the law in a way that does not create new or worse dangers.

[Martin Vickers]

I recognise what my hon. Friend says, but I do not think it is possible to change the law and cover all the varying circumstances. I regret the fact that many in the medical profession are moving towards support for assisted dying. The views of the public vary considerably at various times, and can be influenced by headlines, but I hoped that the medical profession would take a different view. Mention has been made of motor neurone disease, and I recognise the unique difficulties of that condition because I had an aunt who died from the disease.

I will finish shortly as I appreciate that I have taken interventions. I have a final question. Is the abortion law working as originally intended? I would argue that that is not case. A change in this law would open the door to a very different thing. Transparency is something we seek in many areas, such as financial dealings, but in this area I suggest that the grey area should remain.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Yvette Cooper]

The right hon. and learned Gentleman is exactly right, and that is why we have a cross-party interest in these issues. Not only is there no trigger on the face of the Bill—clause 9 will still allow Ministers this huge concentrated power to go ahead and implement the withdrawal agreement without Parliament’s agreement—but there is also a second difference, certainly for me in what Ministers have set out so far, about how a meaningful vote should take place. I want to come on to that as well.

New clause 3 says that Parliament will not yet give the Government permission to use secondary legislation to implement the withdrawal agreement, and that instead the Government must set out their plans for primary legislation to implement the withdrawal agreement. If secondary legislation is needed at that time, as part of the implementation process, those powers should be taken in the withdrawal agreement Bill—the second Bill—so that Parliament is not just handing over a blank cheque, but is deciding what powers are needed and making sure that the proper scrutiny and checks and balances are in place at that time.

I do not think this is really a controversial proposal. It is basically saying that Parliament should hand over no more power to the Executive than it needs to and should not hand over power to the Executive until it needs to and until it knows what is going on. New clause 3 also has the effect of requiring a meaningful vote in primary legislation on the withdrawal agreement before it can be implemented. That is not really a controversial proposal either. It simply says that we should have a proper vote on the most important thing to pass through Parliament in a generation—and a meaningful vote in primary legislation, as is fitting for something so important—and that we should do so before and not after we give Government the powers to start implementing it.

Amendment 7, which was tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), has broadly the same effect. Rather than removing the powers from clause 9, it simply says that they cannot be used until a statute or primary legislation has been passed supporting the withdrawal agreement. Again, that means that Parliament does not blindly hand over powers to the Executive in a trusting way without knowing what the consequences will be or what the agreement looks like.

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

The whole point of this Bill is that it is taking back power to this country and this Parliament, so that we can decide for ourselves what will happen. All the significant powers in the Bill are subject to the affirmative resolution and those that are not will now be subject to a sifting committee. We are recovering from a situation where, as members of the European Union, we had handed over all these decisions, lock, stock and barrel, to the European Union, so the Bill is a massive improvement, and to dress up this attempt to reverse Brexit as an argument in favour of parliamentary sovereignty is nothing but cant.

[Yvette Cooper]

Oh my, what Stalinism is this?—that any attempt to disagree with the way in which this Bill is drawn up is somehow a betrayal of Brexit! What rubbish! How insecure are Members who object to any changes in the Bill, if they cannot see that it is Parliament’s job—a job that they argued for when they stood up and tried to defend parliamentary sovereignty—to take some responsibility by scrutinising legislation and proposing amendments to it? That is all we are doing now. We are putting forward an amendment to the way in which the Brexit process—the withdrawal process—should take place. The idea that this somehow undermines the referendum decision is just a load of rubbish and the hon. Gentleman well knows it, and if he had any better arguments, he would put them, rather than using something that is so ridiculous.

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[Yvette Cooper]

My hon. Friend is right, and that again shows the importance of having these commitments in the Bill, so that there can be no doubt and no possibility of the Government using clause 9 to start implementing an agreement on which there has been no meaningful vote.

[Mr Jenkin]

Can the right hon. Lady explain how the timing will work? If there is to be legislation to approve a withdrawal agreement before March 2019, what happens if the agreement is reached too late to allow that legislation to go through all its stages—[Interruption]—or is this a plan to delay the Brexit date?

[Yvette Cooper]

I thought part of the way through the hon. Gentleman’s intervention that he was finally coming up with a sensible point. I have no control over the timing of the Government’s negotiations; I hope that they and the EU will get on with this quickly, because in particular we need the transitional agreement pinned down as early as possible, as businesses need certainty—and they need that as much in my constituency as in the hon. Gentleman’s. So I hugely hope there will be plenty of time for all these debates to take place. In the event that, against the Government’s will—they have said they do not want this—it ends up being a late deal, Parliament should have the opportunity to ask the Government to extend article 50 for a couple of months, to be able to implement it properly. In fact, the Government will have to do that anyway, because they will not be able to bring clause 9 powers through fast enough not to have to do so.

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[Mr Jenkin]

I am listening carefully to what the hon. Gentleman is saying, but is it really that unreasonable that the Government might need to avail themselves of these powers in clause 9 while the withdrawal and implementation Bill is proceeding through the House of Commons? If the timetable is compressed, that Bill would not be on the statute book and the powers there would not be available. So clause 9 is necessary for that purpose. Of course the withdrawal and implementation Bill could circumscribe the powers in clause 9 and indeed close them off once that Bill is on the statute book.

[Matthew Pennycook]

The hon. Gentleman has pre-empted a point I was going to come to. In the scenario he gives, there is no need for the timetable necessarily to be compressed. If it were squeezed, what would that say about the role that Parliament will have on the withdrawal agreement and implementation Bill? In his scenario, there would also be no need for the secondary legislation in this Bill, which could be included in a similar form in the withdrawal agreement and implementation Bill, when we would have a better idea about what it will be needed for and can more adequately circumscribe its scope. As for this idea that we have a withdrawal agreement and implementation Bill making its way through this House at the same time as secondary legislation implementing elements of that agreement hang over this place, such an approach would create serious confusion.

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[Matthew Pennycook]

The hon. Gentleman is right that the European Union (Notification of Withdrawal) Act 2017 and the article 50 notification gave effect to their own timetable. That is why it is so important that we have transitional arrangements on current terms that allow us flexibility to negotiate the final deal. I will return to this point later, but there is no way that, before we leave in March 2019, we will have agreed the future relationship. We will have agreed heads of terms at best.

[Mr Jenkin]

Will the hon. Gentleman give way on that point?

[Matthew Pennycook]

If it is all right, I am going to make a bit of progress because many Members wish to speak.

As I have said, I do not think there is a need for the powers in clause 9 because secondary legislation of a similar type could be included in the withdrawal agreement and implementation Bill. Why the need for such powers? We do not think there is any justification for them. I look forward to hearing the Minister’s justification for why the clause needs to stand part of the Bill but, unless amendment 7, tabled by the right hon. and learned Member for Beaconsfield (Mr Grieve), is passed, the Opposition will vote for the clause to be struck from the Bill.

If clause 9 remains part of the Bill at the end of the parliamentary process, its constitutional potency and scope must be highly circumscribed. I do not intend to dwell extensively on what limits should be placed on the clause 9 power because, in general, the same arguments apply as those that I set out at length in the Committee’s deliberations on clause 7 yesterday. I will say, though, that amendment 27 to clause 9, similar to our amendment 25 to clause 7, would constrain the capacity of the powers in clause 9 to reduce rights or protections.

The powers in clause 9 are different from the powers in clause 7 in a particular way: namely, the extraordinarily wide power explicitly provided for by clause 9(2) gives Ministers the power by regulation to modify—a term that clause 14 makes clear covers amendment and repeal—the Bill itself once enacted. As my hon. Friend the Member for Rhondda (Chris Bryant) pointed out on Second Reading, there is no example throughout the history of the 20th century of a Bill that has ever sought to do that—not in time of war and not in time of civil emergency. In fact—this is a point that my hon. Friend continues to make, and should—every single emergency powers Act has specified that there should not be a power in such legislation for Ministers to alter primary legislation. We do not believe the power is justified, and amendment 30 would limit the potency of the delegated powers in clause 9 by preventing them from being used to amend or repeal the Act itself.

Let me turn briefly to the purpose, scope and limits of clause 17, which gives powers to Ministers to make any consequential provisions that they consider appropriate in consequence of the Act and to make any transitional provisions that might be needed as a result of the Bill coming into force. In contrast to our position on clause 9, we acknowledge that there is an established precedent with regard to consequential and transitional provisions, so we will not be voting against clause 17 standing part of the Bill, but it must be circumscribed.

A clause as widely drawn as clause 17—it is arguably the most widely drawn of all—set in the context of a Bill of such constitutional and legal significance that it covers almost every element of the UK’s withdrawal from the EU and, it could be argued, nearly every facet of our national life, means that the power to make consequential provisions under clause 17 is not as tightly limited as it might be in other pieces of legislation. As such, it inevitably throws up the possibility that the powers in subsections (1), (2) and (3) of clause 17 could be used to make changes to vast swathes of secondary and primary legislation, including legislation in this Session up to May 2019.

When he responds, the Minister will no doubt cite other statutes that provide for not dissimilar powers, but having looked closely at a fair number of them, I am not convinced that any are so widely drawn as this one, and none are contained in legislation as constitutionally significant as this Bill. The Hansard Society was right to refer to clause 17 as a “legislative blank cheque” for the Government, and the power must be restricted. Amendment 29 would achieve that aim by removing subsections (1), (2) and (3) of clause 17. If the Government believe that that is the wrong way to restrict the sweeping powers in the clause, they can of course come forward with their own suggestions, but the principle of circumscribing the powers in the clause must be accepted.

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[Mr Grieve]

In a moment. I do not wish to take up too much of the Committee’s time.

My point brings me to the specifics of clause 9, which is an extraordinary and wide power to remove us from the EU by statutory instrument, and moreover—this is the most telling point—to ask the House to give the Government effectively a blank cheque to draft statutory instruments to achieve something when at the moment we do not know what that is.

[Mr Jenkin]

I am listening very carefully, but clause 9 is not about implementing our leaving the European Union; it is about implementing a withdrawal agreement. My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) did not vote for article 50, but my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) did. That is when he voted to leave the European Union and that is decided, so he is incorrect to say that clause 9 is deciding when or how we leave the European Union.

[Mr Grieve]

If I may say so, I think my hon. Friend has misunderstood what I said. The fact is that clause 9 provides a power, exercisable once this Bill comes into force before exit day, to implement something when we do not at present know what that is. Therefore, it is a very strange thing to ask Parliament to sign off.

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[Mr Jenkin]

I have listened to this entire debate with close interest. I think that we are all agreed that we want an orderly process for leaving the EU, which means a sensible withdrawal agreement along with a clear and detailed commitment to an EU-UK trade agreement and a period of implementation, but I also think we all agree that if no satisfactory agreement arrives, we still all voted to leave the EU. Well, we nearly all voted to leave the EU: I respect my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke), but he voted against the triggering of article 50, as did some others. Those of us who voted to trigger article 50 voted to leave on 29 March 2019.

[Stephen Kinnock]

Article 50 clearly states that an extension can be requested, so when we voted to trigger it, we voted to trigger a clause that included the possibility of requesting an extension.

[Mr Jenkin]

I will come back to the way Parliament interacts with the process, but it would be really rather foolish for this House and the Government to premise all their plans on the basis that that request would be acceded to, because it would require unanimity. I have not heard a single public statement from the EU or a European diplomat that suggested for a moment that they would countenance extending the deadline. Of course, why would they? The deadline written into article 50 is to their advantage. I expect that the hon. Gentleman would have voted for the Lisbon treaty, which contains article 50, but I did not vote for it. I have always thought that article 50 was a snare and a trap. It sets a deadline, against which we are now negotiating, and that is the only prudent way to negotiate.

I loathe secondary legislation that amends primary legislation expressed in Acts of Parliament. It is an odious practice that has entered the legislative process in this House—this is by no means the first Bill that contains so-called Henry VIII clauses—but I can justify such powers as a basis for reversing the effects of our membership of the EU. It may seem to be an irony, but it is by the process of secondary legislation that we have been gradually integrated into the EU.

We have seen order after order coming under section 2(2) of the European Communities Act 1972. More often than not, it was a “take it or take it” option: we did not even have a “take it or leave it” option once it was expressed in EU law. The advantages of allowing secondary legislation under this Bill are that, first, the legislation will ultimately be answerable to the House; secondly, the powers are temporary; thirdly, they can be subject to revision or annulment at any future time; and finally, they are underpinned by the democratic authority of a referendum.

On a “take it or leave it” vote, I do not remember debating a single new treaty that was offered to the House on the basis that we could amend the treaty by passing an Act of Parliament. Whether to accept the Lisbon treaty was a “take it or leave it” decision. We were told that if we did not accept the treaty, it would create such chaos that it would force us to leave the EU.

I do not doubt the bona fides of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) and others on the Government Benches, but my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) exposed very ably the fact that there are people in the House who want to use amendment 7 as a means to extend the negotiation. My right hon. and learned Friend the Member for Rushcliffe was absolutely explicit on that point. I appreciate that the shadow Minister, the hon. Member for Greenwich and Woolwich (Matthew Pennycook), did his best to avoid answering the question, but he made it clear that he thinks the deadline will have to be extended.

[Mr Kenneth Clarke]

I thought for a moment that my hon. Friend meant all that stuff about my challenging the result of the referendum.

[Mr Jenkin]

No, no, no.

[Mr Clarke]

I am sorry; I misheard my hon. Friend. I do not think for one moment that we will have completed any of these negotiations by March 2019, but I will wait to see. There are perfectly clear arrangements in article 50 for the time to be extended. I have met several other European politicians, including some of those involved in the negotiations, who rather expect that to happen.

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[Mr Jenkin]

As I say, it is not something that we can bank on.

May I just deal with this question of what is a meaningful vote? I cannot find anything clearer than the ministerial statement that was issued this morning. It says that

“the Government has committed to hold a vote on the final deal in Parliament as soon as possible after the negotiations have concluded.”

It continues:

“This vote will take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms for our future relationship. The Government will not implement any parts of the withdrawal agreement—for example by using clause 9 of the European Union (Withdrawal) Bill—until after this vote has taken place.”

That seems to provide the assurances that my right hon. and learned Friend is looking for and that the Minister of State, Ministry of Justice has repeated already from the Dispatch Box.

[Anna Soubry]

Does my hon. Friend agree that, to be meaningful, there has to be some time between that vote and such time as we leave the European Union? That is the whole point. A meaningful vote comes before something that is basically to be rubber-stamped. That is the whole point of “meaningful”. When does he anticipate that we will have that vote?

[Mr Jenkin]

The right hon. Lady knows as well as I do that the intention is to try to conclude an agreement by October 2018, but, again, there is no guarantee of that fact, in which case the resolution will be tabled soon after 2018. May I just point out that amendment 7, proposed by my right hon. and learned Friend the Member for Beaconsfield, is trying to create a meaningful vote by turning this resolution of both Houses into a statute?

[Mr Grieve]

Well, we have been promised a statute.

[Mr Jenkin]

Yes, a statute has been promised, but not as a means of second-guessing the negotiations. At what stage in the passage of the statute does my right hon. and learned Friend expect the Government to use that moment and say, “Oh, well, they haven’t agreed with this bit of the agreement; we’ll have to go back.” Is it during the passage of the statute that the negotiations would have to continue? Making this decision a statute does not alter the discussion about a meaningful vote.

[Mr Grieve]

I am most grateful to my hon. Friend for giving way. I think that he may misunderstand the position. The House will have an opportunity, at the time that it is asked to move a motion approving the deal, to express its view, but it will also have an opportunity to express its view during the passage of the statute. Both those are necessary pre-conditions constitutionally for our leaving the European Union. I cannot help that; that is just how it is. Let me reiterate: the purpose of my amendment is to prevent the powers in clause 9 being used until this key statute has been enacted. That is the purpose.

[Mr Jenkin]

Actually, that option is not available, because article 50 has a deadline, and when that deadline runs out, we leave. There is no requirement for a withdrawal agreement or a statute for the United Kingdom to leave the European Union.

[John Redwood]

Does my hon. Friend agree that this is a process completely driven by Parliament? We have an Act of Parliament to send the letter, an Act of Parliament proposed now to withdraw and then another Act of Parliament to implement any agreement. The whole thing is completely under parliamentary sovereignty. Will he also confirm that we must have the date in the Bill to ensure legal continuity, as, under international law, we are leaving at the end of March because of the treaty?

[Mr Jenkin]

It is wishful thinking that the deadline will be extended. Where I disagree with my right hon. and learned Friend the Member for Beaconsfield is over the fact that, somehow, he thinks that the withdrawal agreement is necessary for us to leave the European Union and that the statute for the agreement is therefore necessary. Unfortunately, it is not. He voted for article 50, which triggered the process of leaving. Everything else is for our domestic legislation. Let us hope that there is a withdrawal agreement, but, actually, this Bill is what is necessary to provide legal continuity. Unfortunately, requiring another Act of Parliament before provisions of this Bill come into effect is just muddying the waters.

As the Minister has already demonstrated very forcefully, this is not an effective amendment. If my right hon. and learned Friend wants to table a different amendment, as colleagues almost seem to be suggesting, that might be a way to resolve this. I beg my right hon. and hon. Friends on this point. There is a summit tomorrow. This is not the moment to try to defeat the Government—[Interruption.]

[The First Deputy Chairman of Ways and Means (Mrs Eleanor Laing)]

Order.

[Mr Jenkin]

This is not the moment to try to defeat the Government, when there is another opportunity to amend the Bill at a later date.

[Angus Brendan MacNeil]

On a point of order, Mrs Laing. Are summits now to be sovereign over Parliament?

[The First Deputy Chairman]

That is not a point of order.

[Mr Jenkin]

This is not the moment to try to defeat the Government, when there is another opportunity to amend the Bill at a later date, if a satisfactory discussion cannot be held. My right hon. and learned Friend the Member for Beaconsfield has been very conciliatory.

[Anna Soubry]

We have been speaking for months.

[Mr Jenkin]

Well, continue the discussions.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Jenkin]

No, I will not give way. I keep hearing my right hon. Friend saying, “It’s too late.”

[Anna Soubry]

I did not say that; I have never said that.

[Mr Jenkin]

I have heard my right hon. Friend saying that.

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[The First Deputy Chairman]

The right hon. Lady knows that that is not a point of order. It is a point of debate. The hon. Member for Harwich and North Essex (Mr Jenkin) is about to conclude his speech, and the more that other hon. Members shout at him and interrupt him, the less chance other Members will have to speak.

[Mr Jenkin]

I will give way to my right hon. Friend the Member for Wantage (Mr Vaizey).

[Mr Vaizey]

My hon. Friend’s remarks fill me with hope. He seems to accept that this debate is about a point of principle, rather than—as some might think—delaying Brexit, which is absolutely not what it is about. Does he agree?

[Mr Jenkin]

I think that some people in this House might be trying to delay Brexit, some of whom may be supporting the amendment of my right hon. and learned Friend the Member for Beaconsfield, but I perfectly accept his bona fides and those of my right hon. Friend the Member for Wantage. I simply conclude that there is an opportunity for the discussions to continue. It is not necessary to bring this matter to a vote this evening.

[Chuka Umunna]

I will try to do this in three minutes, and I have three principal points. I do not want to speak for long because the points I will make in support of amendment 7 and new clause 3 have already been made very well by the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve), my right hon. Friends the Members for Normanton, Pontefract and Castleford (Yvette Cooper) and for Leeds Central (Hilary Benn), and others.

My first point is that if taking back control does not mean passing amendment 7, I do not know what does. We were told that we were leaving the European Union to reassert parliamentary sovereignty, and it seems to me that that is exactly what amendment 7 would do. Clearly, the Government are refusing to accept it. We have heard nothing from the Dispatch Box that suggests that they are prepared to concede on this, forcing the right hon. and learned Member for Beaconsfield to press the amendment to a vote. That brings me to my second point.

The right hon. and learned Gentleman and others who are supporting his amendment have been attacked, as he mentioned earlier, not just in this place, but beyond. They have been called mutineers and saboteurs, and have faced all the rest of the abuse. Ministers and other Tory Members of Parliament in particular who have been attacking them have absolutely no right whatever to do so because the reason that the right hon. and learned Gentleman tabled his amendment was that he felt that it was in the national interest.

Now, the Brexit Secretary has voted against his party over 90 times. The International Trade Secretary has done so 19 times; the International Development Secretary, five times; and the Leader of the House, who was here earlier, seven times. Actually, look around the Government Benches. The right hon. Member for Wokingham (John Redwood) has voted against his party 73 times; the hon. Member for Basildon and Billericay (Mr Baron), 64 times; the hon. Member for Harwich and North Essex (Mr Jenkin), 95 times; and we cannot, of course, forget the hon. Member for Stone (Sir William Cash), who has voted against his party more than 100 times. So none of these people can now lecture people who are seeking to do the right thing in the national interest on this amendment. None of them can lecture people about rebelling on this or any other matter.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

[Mr Grieve]

My hon. Friend is absolutely right. He has correctly analysed what the issues are and the categories of rights on which we probably ought to focus.

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

Some of these rights are going to be incorporated in different statutes. For example, there is going to be an environment Act, which will create a new regulator and, we hope, protect those rights. Is the present proposal not a very broad brush, which is ill fitted to dealing with these rather detailed matters? Can my right and learned hon. Friend give us some reassurance that Supreme Court judges will not be left dealing with more legal uncertainty, rather than less, because they will have to adjudicate between two different rights regimes—one that is directly applicable from our own statute, and the other where they may have to declare an incompatibility with European convention rights? How will that diminish legal uncertainty, which is what Supreme Court judges are looking for?

[Mr Grieve]

If I understand my hon. Friend’s question, it goes to the point I made a moment ago, which was that it ought to be possible to consider whether some of these rights should be incorporated in a Bill of Rights that provides equivalent protection to that currently provided in the Human Rights Act. I think it is possible to distinguish between what matters and what does not. I am not suggesting that all environmental law would have to enjoy that protection, but I think it is possible, and an exercise that this House and the Government will have to carry out—the pressure will build for this—to give this issue some consideration. Equally, the House may decide that it is not concerned about some categories of rights and that it just wants to stick to things such as equality, data privacy and children’s rights. We will need to debate that.

[Mr Jenkin]

But it will create uncertainty.

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[The Minister of State, Ministry of Justice (Dominic Raab)]

It is a pleasure to follow the hon. Member for Sheffield Central (Paul Blomfield). At the outset, I would like to thank hon. Members from right across the House for their contributions to today’s debate, whether in speeches or in amendments. The Government will approach the Bill in the spirit of collaboration, and I certainly welcome the constructive contributions and diligent scrutiny hon. Members are rightly providing today. I shall seek to address clause 5, and the Solicitor General will address schedule 1 a bit later in the debate, to make sure we dwell adequately and with due consideration not only on the provisions of the Bill, but on the various issues and amendments, for which I am grateful to hon. Members, that have been raised.

Clause 5 serves two key strategic objectives: taking back democratic control over our laws and making sure we leave the EU in a way that facilitates a smooth Brexit and minimises legal uncertainty. The Bill aims to provide that the laws which apply immediately before exit day will continue to apply in the same way after we leave. Of course, the act of leaving the EU in itself means it is inevitable that some things will not and cannot stay the same. The changes made by clause 5 relate to certain aspects of EU law which are no longer appropriate, or which will not make sense when we leave the EU because we will then cease to be under the obligations that apply to us as an EU member state. The provisions are therefore essential.

Clause 5(1) ends the supremacy of EU law in relation to new law from the date of exit. That is crucial if we are going to give effect to the mandate from the referendum. At the same time, clause 5(2) makes sure that EU law passed before exit still applies as before, for the sake of legal certainty. That is important for mitigating the risks of legal uncertainty that are inevitable and inherent in departure from the EU. The rest of clause 5 reinforces those critical objectives, including by removing the instrument of the charter on fundamental rights as part of domestic law. I want to come on to address that in detail.

[Mr Jenkin]

May I refer my hon. Friend to clause 5(2)? My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), in his rather amazing speech which I think we all found very illuminating, said that this was a completely new principle to be applied in British law. Is it not just a translation of an existing principle in EU law into United Kingdom law for the purposes of a smooth Brexit? Is it not, in fact, less exceptional than being a member of the European Union and allowing a court in a wholly different jurisdiction to impose itself on parliamentary sovereignty?

[Dominic Raab]

I thank my hon. Friend for his intervention and I will come on to address very carefully the speech made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). I agree that there is an inherent sense that, as we move to change, things are not going to be exactly as they were before. I want to draw a very important distinction. We are leaving the EU and taking back control over our laws and the way we make our laws, so that Members across the House can exercise proper democratic control. At the same time, the substantive law—the rules and the principles—will remain the same, because of the snapshot we are taking on exit day and retaining in UK law, thereby avoiding the putative legal cliff-edge.

--- Later in debate ---

[Joanna Cherry]

I beg to differ. The Solicitor General is right about the dates, but as we know, the charter is merely a codification of various general rights and principles. We have significant concerns about not incorporating it, notwithstanding the little list that the Minister is going to give us on 5 December, because with all due respect, a list prepared by a Minister does not have the same weight in a court of law as a codification that has been signed up to by a number of countries.

It is not just my view and that of the hon. Member for North Down (Lady Hermon) that there will be an issue for the Good Friday agreement. A briefing produced by none less than the Bingham Centre for the rule of law has raised the question of whether non-retention of the charter will impact on Northern Ireland. It has raised a series of questions, which I have just paraphrased, and I look forward to the Solicitor General answering them in more detail, rather than merely saying that there is not a problem. If I may say so, this illustrates the whole problem with the British Government’s approach to the unique situation in which Northern Ireland finds itself as a result a Brexit. There is a constant parrying, and saying, “There is not a problem, it can all be sorted out. It will all be fine.” This is what is causing us problems in the negotiations with the EU27, and particularly with the Republic of Ireland. Mere platitudes and assurances are not enough. We need some detail as to why removing the charter of fundamental rights from domestic law in the United Kingdom and Northern Ireland will not pose a problem for the Good Friday agreement. However, I am sure that as we have the Solicitor General here, we will hear that detail later.

[Mr Jenkin]

I wonder whether the hon. and learned Lady recalls the Mostyn judgment of 2013, in which a very senior member of the judiciary expressed astonishment that there was direct applicability of the charter in UK domestic law, given that the protocol had been attached to the charter when we originally signed up to it. Given the rather temporary nature of the charter rights, how can it be so fundamental to the Good Friday agreement? It did not exist in law in this country, and was not recognised by the judiciary, even after it had been brought into force in the treaties.

[Joanna Cherry]

If I may say so, I think that that is to misunderstand. I am not responsible for the false assurances that were given about the opt-out when this country signed up to the charter. They did not come from the Scottish National party, and I think it is fair to say that they have now been disowned by the Labour party. In reality, the incorporation of the charter in our law has meant enhanced direct effect. I use the term “direct effect” rather than “direct applicability” because people are able to take an action and refer to those rights in the course of their action, as we saw in the Supreme Court case last summer when a gentleman named Mr Walker was able to realise equal pension rights for his husband, despite a loophole in UK law about the equalisation of pension rights for gay couples, because the EU charter closed that loophole.

I want to give the House a brief list of some of the rights involved. We have heard a lot about data protection, and I know that others will want to address that issue, but it is worth remembering that the right to be forgotten on Google and other search engines—which I believe is of interest to some Members—stems from the EU charter. There is more to it than that, however. Let us look at the words of others, rather than simply accepting the argument on my say-so.

When the Exiting the European Union Committee took evidence on these matters, Caroline Normand, the director of policy at Which?, told us that

“the Charter of Fundamental Rights contains some really important principles for consumers. The particular ones that I would highlight are the right to a high level of human health protection, which is article 35, and a right to a high level of consumer protection.”

She referred to the case last May—it has already been mentioned today—when the large tobacco companies brought judicial review proceedings challenging the regulations that introduced standardised packaging for tobacco products. The High Court dismissed the case, referencing the public health and other rights set out in the charter. That is a pretty meaningful right for public health in these islands.

Dr Charlotte O’Brien, a senior lecturer at York Law School, told the Select Committee that she had produced an approximate count for the number of times the charter was referenced in case law. She found that the charter was cited in 248 cases in England and Wales, 17 in Northern Ireland, 14 in Scotland and 98 in the European Court of Human Rights, and in 832 EU judgments, 515 of which were from the Court of Justice. Her point was that that is an awful lot of cases that would have to be read differently, and it is not clear how they are to be read differently.

--- Later in debate ---

[Mr Jenkin]

It is for the European Court of Justice to continue to interpret what the charter of fundamental rights actually means within the European Union, so if the charter was incorporated into our law, what relationship does my hon. Friend think would exist between our Supreme Court and the interpretations that would continue to be developed in the European Union?

[Sir William Cash]

The Supreme Court would be applying the European interpretation in that context, and I simply say that it will involve disapplication of law. It is a matter not of assertion but of fact and law that that is precisely what will happen.

I urge my right hon. and learned Friend the Member for Beaconsfield and others not to press their amendments on the charter, because to do so would be totally unacceptable. I refer to what I have alluded to already: the principle set out by Lord Justice Bingham in chapter 12 of his magisterial book on “The Rule of Law and the Sovereignty of Parliament?”, in which he publicly criticised the attitude of Baroness Hale, now President of the Supreme Court, and Lord Hope of Craighead in suggesting that the courts have constitutional authority, as against an Act of Parliament. With respect to the whole question of parliamentary sovereignty and the issue of the courts, he says that various remarks had been made but:

“No authority was cited to support them, and no detailed reasons were given.

I cannot for my part accept that my colleagues’ observations are correct... To my mind, it has been convincingly shown”—

by Professor Goldsworthy, one of the greatest authorities on this subject—

“that the principle of parliamentary sovereignty has been recognised as fundamental in this country not because the judges invented it but because it has for centuries been accepted as such by judges and others officially concerned in the operation of our constitutional system. The judges did not by themselves establish the principle and they cannot by themselves change it… What is at stake”—

said Professor Goldsworthy—

“is the location of ultimate decision-making authority… If the judges were to repudiate the doctrine of parliamentary sovereignty, by refusing to allow Parliament to infringe on unwritten rights, they would be claiming that ultimate authority for themselves.”

Moreover, Lord Bingham went on to say that they would then be transferring the rights of Parliament to judges:

“It would be a transfer of power initiated by the judges, to protect rights chosen by them, rather than one brought about democratically by parliamentary enactment or popular referendum.”

With some irony, the Bingham Centre for the Rule of Law has put some of the contrary arguments.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Mr Howarth]

I will answer precisely that point before I conclude, but if the right hon. Gentleman will forgive me I will do so in my own particular way.

The second test to apply is fairly straightforward: are we heading into economic disaster? At this stage, we are unable to say. We do not know what the trade terms will be and we do not know how they will affect businesses and workforces. All of that is to be negotiated. If, at the end of the process, all those questions have been answered to my satisfaction and that of my constituents, I could vote, provided I am given the opportunity, to leave the European Union. At this stage, however, there is such a lack of clarity about where we stand and where we will get to that I am not prepared to give that commitment. I cannot say to my constituents that everything they voted for will not happen, on top of which it will be economically disastrous for us.

I say to the Government: get on with the negotiations, but we want the opportunity to say this is not right for our constituents. I will vote for the amendments tabled by the right hon. and learned Member for Beaconsfield and my right hon. Friend the Member for Normanton, Pontefract and Castleford to make sure that we have exactly that opportunity.

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

I have often taken part in such debates as these and felt rather in the minority in opposing a new European treaty, and I wonder whether I am still in a minority in the House today, as it probably has more remainers than leavers in it, which rather colours the judgment of those taking part in the debate.

[Anna Soubry]

Oh move on, for God’s sake!

[Mr Jenkin]

I just put that forward as a problem. I believe as passionately in my case as my right hon. Friend does in hers. I sympathise and understand, but we have to accept that the country voted to leave. The one thing we know about how people voted—whether it was for this deal or that deal, whether they believed or disbelieved this or that piece of propaganda—is that they voted to leave the EU. That is the one thing it said on the ballot paper. I cannot understand how anyone can come to the House and say, “Well, there might be circumstances in which I will not respect that decision”, as the right hon. Member for Knowsley (Mr Howarth) just did. That is what it amounts to.

[Peter Kyle]

Sir Winston Churchill said that the role of an MP was to put country first, constituency second and party third. Does the hon. Gentleman accept that, if the Government come back with a bad deal, allowing it to go forward would put none of those three first?

[Mr Jenkin]

That brings me to my next point. This debate is rerunning many of the arguments during the referendum campaign. The remain case was premised on the idea that it is a horrible, cruel world out there, that we cannot survive outside the EU, that it will be completely disastrous and that unless the EU give us permission and lots of help and support and agree to a whole lot of stuff we would like, we will be on our own in the cold. You know what? It is not true. Most countries are not in the EU and they are fine. This debate sometimes loses sight of that.

I wish to speak in favour of clause 1 standing part of the Bill. I agree so much with my right hon. Friend the Member for Wokingham (John Redwood). This is the most important Bill since we joined—more important, in fact, because after 45 years of membership it is so much more significant than it was. The principle of democracy is that Parliament legislates and Ministers obey and implement the law. The problem with the EU is that it turned our Ministers into legislators. They go to Brussels, sit in council, legislate and then bring back fait accompli legislation that is then imposed on this House. The 1972 Act is the greatest Henry VIII clause that has ever existed, and there is something a bit inconsistent —I understand why they are saying it—in complaining about Parliament not being treated properly, given that the whole principle of our membership of the EU requires the removal of the House’s right to make the laws of this country.

[Chris Bryant]

I note that the hon. Gentleman just said that it was wholly inappropriate for Ministers to go to Brussels and bring back a fait accompli. In relation to the EU negotiations, would it not be wholly inappropriate, therefore, for Ministers to go to Brussels, bring back a fait accompli and not give Parliament a proper opportunity to say, “You know what? You’ve got this wrong. You’ve got to renegotiate.”?

[Mr Jenkin]

I completely agree with the hon. Gentleman. The House should have the right to accept or reject the deal, and it will—it will have the right to reject or accept the withdrawal agreement and implementation Bill; but that will not change the decision to leave the EU. That decision has been taken.

I turn to the date of our exit. The referendum said leave. We were all told that we had to use article 50. Article 50 says on the tin that it takes two years maximum. The date is already fixed. There is no choice about the date. The date has to be in the Bill, otherwise we will weaken our negotiating position.

[Several hon. Members rose—]

[Mr Jenkin]

I will make my point and then give way.

The point is that we cannot go into the negotiations saying, “We have signed up to article 50, but we do not accept that we might have to leave after two years. We might come to you begging for a bit more time.” That will not put us in a very strong negotiating position.

[Mr Grieve]

I should preface my question to my hon. Friend by saying that, in my view, there is no evidence at the moment that public opinion on this issue has shifted at all since the referendum. But let us just suppose, as a hypothesis, that by the end of next year it becomes clear from opinion polls that 90% of the population believe that a mistake was made in the triggering of article 50. Does my hon. Friend seriously believe that we as a House should entirely ignore that evidence, if it were presented to us repeatedly?

[Mr Jenkin]

My right hon. and learned Friend is a very able barrister, and he presents his case extremely well, but we really are into hypotheticals now. [Interruption.] It was my right hon. and learned Friend who used the word “hypothesis”.

The fact is that article 50 was passed by an Act of Parliament, the European Union (Notification of Withdrawal) Act 2017, by 498 votes to 114 on Second Reading of the Bill that became that Act. All that these three amendments do is align this Bill with what the House voted for so overwhelmingly.

[Anna Soubry]

Will my hon. Friend give way?

[Mr Jenkin]

I will, but I have been told to take very little time.

[Anna Soubry]

I am very interested in my hon. Friend’s point about the fact that the date should have been in the Bill. It was an important point, so will he tell us why he did not table an amendment to insert the date?

[Mr Jenkin]

Would I be telling tales out of school if I said that I had thought about it, and discussed it? In fact, there was plenty of friendly discussion about it, but in the end the Government decided the matter for themselves, and I support the Government. I think that, given that we are in a slight minority in this Parliament and we have to deliver a very difficult Brexit and take part in difficult negotiations, it is incumbent on all Conservative Members to support the Government whenever we can.

[Vicky Ford (Chelmsford) (Con)]

I completely agree with a vast amount of what my hon. Friend has said. Article 50 sets the date, but it also sets the process, and the last part of the process is a vote in the European Parliament. As I recall from my time in the European Parliament, it often asks for a little bit extra at the last minute. My concern about hard-wiring the date is that it makes it more difficult for our Government and the other 27 national Governments to give that little bit of extra time should it be needed. It loses our flexibility rather than giving us more. That is my only concern.

[Mr Jenkin]

Unfortunately, even the European Parliament cannot change the exit date. It would have to be agreed by all the other member states. To predicate our negotiating position on our ability to persuade the 27 member states—and the Commission and the negotiating team in Brussels—to extend the date would be completely wrong.

Any Members who intend to vote against this date must be really confident that they can change a date that has already been set by the European Union treaties. The whole point about the deal/no deal scenario is that—as I have already said to the right hon. Member for Knowsley—either we accept the deal, and the House votes on it, or there is no deal. That is the choice that is available to the House. The House cannot veto Brexit—[Interruption.] I wish to conclude my speech.

Any Members who voted for the European Union (Notification of Withdrawal) Bill are obliged to support the amendment, because that is the date for which they implicitly voted when they voted for the Bill, and for a two-year period. Any Members who voted for article 50 but now do not wish to fix the date are open to the charge that they do not actually want us to leave the European Union—[Interruption.] Let me say this to my right hon. and learned Friend the Member for Beaconsfield. He has suggested that if we do not have a deal we will be jumping into “a void”, and that fixing the date will constrain our negotiations and disenfranchise Parliament. I respect the sincerity of my right hon. and learned Friend’s passion, but he calls the cut-off date barmy when he voted for that date by voting for the article 50 Bill. This amendment rumbles those who have not really accepted that we are leaving the EU.

[Mr Geoffrey Cox (Torridge and West Devon) (Con)]

My hon. Friend knows that I share his fundamental beliefs about the need for us to leave the European Union, but is there not merit in the suggestion of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) that we need not have a fixed date? After all, our own negotiators might wish to have an extension; this is curtailing the flexibility and room for manoeuvre of our own negotiators. My right hon. and learned Friend has proposed an ingenious and commendable solution: that we write into the Bill the date, but we create exceptions for circumstances in which the negotiators might need it. I urge my hon. Friend, and all my hon. Friends who share my view on the EU, to reflect carefully on the suggestion made by my right hon. and learned Friend; it is a commendable one and it requires careful reflection.

[Mr Jenkin]

I am still seized of the truth that if we beg the EU to extend the time because it has run us up against the timetable—after all, it is the EU that is refusing to negotiate on the substantive issues at the moment, not us—that is the position and responsibility it must face. We should be clear and strong that if the EU does not reach an agreement with us by a certain date, we are leaving without a deal. That would put us in a stronger negotiating position than ever.

[Tom Brake]

I am very pleased to start by saying that, irrespective of what might or might not be in this Bill, I would, of course, not want us to leave the EU. I must say that there have been some rational speeches from the Conservative Benches, in particular those of the right hon. and learned Members for Rushcliffe (Mr Clarke) and for Beaconsfield (Mr Grieve). I also saw a significant and rational nodding of heads on the Government Benches during their speeches; I hope that as this debate develops many more of those rational Conservatives will be willing to speak out. I think that, like me, they believed before the EU referendum that leaving the EU would cause us significant damage and that they continue to do so to this day. As they have seen the Brexit negotiations proceeding, I suspect their view has been reinforced. I hope we will hear many more outspoken speeches from Conservatives.

The debate has inevitably been peppered from the Government Benches—the fourth row, referred to frequently—with the usual clichés from the usual suspects about the impact of the European Union: comments about EU bureaucrats plundering our fish and the secrecy that applies. The hon. Member for Stone (Sir William Cash) is no longer in his place; I do not know whether he has ever participated in a Cabinet committee meeting, but if he is worried about secrecy, he could, perhaps, do so—he will then see how clear that decision-making process is.

There have also been many references to the importance of the sovereignty of this Parliament, which is of course important, and unfavourable comparisons have been drawn with the EU, along with a complete disregard of how that body conducts itself through the Council of Ministers and the role of Members of the European Parliament. The only thing that has been missing from the debate has been a reference to the EU stopping children from blowing up balloons. No doubt if the Foreign Secretary had been here, he would have been able to add to that list of clichés about the impact of the EU, and it is a shame that he is not here to reheat that particular canard.

I make no apologies for seeking to amend the Bill and supporting a large number of amendments tabled by Members on both sides of the House, although I do not have much confidence that the Bill can be knocked into shape.

--- Later in debate ---

[Mr Jenkin]

The right hon. Gentleman completely misrepresents what I said, which was a hypothetical. Does he really believe that the British people are going to change their minds? It may be a pious hope but, if anything, leave would win by a far bigger majority if there was another referendum.

[Tom Brake]

The hon. Gentleman has answered a hypothetical question with another hypothetical, so I think I had better leave it there.

I will not be supporting new clause 49, as tabled by the right hon. Member for Birkenhead. The difficulty with his new clause and with the Government amendment is that our negotiating position would be made much worse by having a fixed deadline and not leaving scope to allow the article 50 process to be extended if the negotiations were close to a conclusion but not there. That would constrain us unnecessarily.

As for the Government’s position, their amendments have been comprehensively demolished by others during the debate. My concern is that the Government still seem to be arguing that there being no deal is something that they will happily pursue or are considering as an option notwithstanding the huge level of concern expressed by all sectors—certainly by all the businesses that I have met—about the impact of no deal.

If Members have not already been, I recommend that they go to the port of Dover to watch the process of trucks arriving at the port and getting on a ferry, the ferry leaving, another ferry arriving from the other direction, trucks getting off and then trucks leaving the port. It is a seamless process that does not stop. The lorries barely slow down as they approach Dover, get on to the ferry and then leave. Anything that gets in the way of that process, even if it means an extra minute’s processing time, will lock the port down. Members who think that no deal is a happy, easy option need to talk to people at the port to hear what the impact would be.

I am happy to support Plaid Cymru’s amendment 79 about ensuring that the devolved Assemblies have some say in the process, which has been significantly denied so far.

If we have a vote on clause 1 stand part, I will certainly be ensuring—

--- Later in debate ---

[Mr Grieve]

The hon. Gentleman is absolutely right. The way in which this Bill is framed takes no account whatsoever of the possibility of a transitional arrangement.

[Mr Jenkin]

It’s not meant to!

[Mr Grieve]

My hon. Friend says that it is not meant to, but I cannot criticise the hon. Member for Nottingham East (Mr Leslie) for raising the issue, because we are hearing more and more about transitional arrangements. Of course, that highlights—does it not?—the fact that this Bill can do only part of the task that we have to do altogether. I think that it is right that we seek in vain to amend this Bill, because we will not able to make it do something that deals with transitional arrangements that we currently know nothing about.

--- Later in debate ---

[Mr Leslie]

I fear that that scenario is beginning to loom on the horizon. We know the Prime Minister does not want that because she says she wants the transitional arrangement, but more flesh has to be put on the bones in terms of how the UK envisages the transition and at the European Council in December. If a transition deal is not signalled, with more flesh put on the bone in December, a lot of firms will say, not unreasonably, “We have to plan for a scenario in which we are not legally able to sell our services to the 500 million customers across the other 27 countries.” We hear that American corporations that currently have their base in London are looking at all sorts of convoluted branch-back arrangements, so that they can subsidiarise back into the UK. This is getting terribly complicated and very expensive. Ultimately, all these issues will hit consumers and workers in the UK. It will have a very practical effect on the lives of many of our constituents.

[Mr Jenkin]

I share the hon. Gentleman’s and the Prime Minister’s hope that there will be a sensible implementation period, although, as the Secretary of State has said, it is a diminishing asset if it is left later and later before we know are going to get it. I welcome the inquiring way in which the hon. Gentleman is proposing his new clause, but I think he has made his own point. If there are to be any enforceable legal obligations arising from a withdrawal agreement, or any agreement, after we have left, they should be done through the Act of Parliament that was announced yesterday and not incorporated into this Bill. That is why it is safe to put the exit date in the Bill, because the exit date ends the jurisdiction of the European Court of Justice.

[Mr Leslie]

Let us imagine the circumstances where exit day falls at that fateful 11 pm on 29 March 2019 and there is no legislative architecture in place for the transitional period from 11.1 pm and thereafter. At present, there is no guarantee from the Government—I will give way to them if they will guarantee it—that that legislation will be put in place, published and consulted on and that businesses will know what the transitional legal framework will be from 11.1 pm on 29 March 2019 onwards. The Government have said that we might not get the latest offer of an Act of Parliament until not only after a withdrawal treaty has been signed and sealed by Ministers, but after exit day. There is, therefore, a hiatus. What is the legal architecture that fills the gap in that transition? That is the question I am asking in new clause 14.

--- Later in debate ---

[Paul Blomfield]

It is a pleasure to follow the right hon. Member for Chesham and Amersham (Mrs Gillan), who has made some thoughtful and sensible points on her amendments, which we would support. I rise to speak to amendment 278, and to the consequential amendments 279 to 284, which would allow for transitional arrangements within the existing structure, rules and regulations. I will also speak to our amendment 306, but I will return to those separate issues later.

Amendment 278 follows on from our earlier debate on clause 1. It brings into even sharper focus the issue of the Court of Justice of the European Union’s jurisdiction during a transitional period. As I said in the previous debate, and as my hon. Friend the Member for Nottingham East (Mr Leslie) said earlier in this one, there can be no transitional period on current terms, as the Prime Minister wishes, without that jurisdiction. The Florence speech has been much quoted already, and I am sure that that will continue. Let me refer briefly to it one more time. The Prime Minister obviously made the speech after the Bill had been published, but perhaps its early drafting did not have the opportunity to accommodate the emphasis that she has placed on the

“two important steps, which have added a new impetus”

to the process.

She said of the second of those steps:

“I proposed a time-limited implementation period based on current terms, which is in the interest of both the UK and the EU.”

She was accepting the case made by business and trade unions for an effective transitional period and, crucially, again making the point that this should be on current terms.

As I said in the earlier debate, we were pleased that the Prime Minister had caught up with Labour on that position. However, seven weeks on from the Florence speech, the Government have failed to reflect the ambition that the Prime Minister had at that time in any of the amendments to the Bill. They came up with the bizarre amendments that we debated in relation to clause 1, but they failed to address that ambition, so we have helpfully stepped in to fill that gap with amendments 278 to 284. The amendments would mean that, in relation to the jurisdiction of the Court of Justice, exit day should come at the end of the transitional period. The reason is simple: without acceptance of the continuing role of the Court of Justice during the transition, the idea that the implementation period, based on current terms, could happen in the way that the Prime Minister described is frankly delusional.

[Mr Jenkin]

I get the feeling that the cart is coming before the horse here. No transitional implementation has yet been agreed. It has to be part of a deal, and it would be a mistake for the House to start putting things into the Bill in the expectation of certain things that may or may not happen. That is why my right hon. Friend the Secretary of State for Exiting the European Union announced a separate Bill to implement any agreement, which is when such things will be dealt with. This Bill is much simpler than the Opposition would like it to be.

--- Later in debate ---

[Sir Oliver Letwin]

Let me deal with my right hon. and learned Friend’s helpful intervention in two steps. If what he said in the first step about the supremacy of the Supreme Court’s rulings is to apply—which is not inequality, but puts the Supreme Court above the ECJ in the interpretation of these matters for retained law—that is a perfectly clear position, and one that I, as a matter of fact, would welcome; but then the Bill should bloody well say so. However, he is right, in that even if we presume that the Bill will be adjusted—as I am sure it will be, in the House of Lords—to make it clear that that is the case, we face the next problem, which is what it is that the poor old Supreme Court is meant to be doing.

[Mr Jenkin]

I understand the words

“in accordance with any retained case law”

in clause 6(3)(a), but I do not understand the words

“any retained general principles of EU law”.

That suggests that the court must adopt a methodology which has been retained. What we want our courts to do is revert to what they used to do, which was interpreting statute without reference to the jurisprudential and teleological techniques adopted by the European Court.

[Anna Soubry]

No, no.

European Union (Withdrawal) Bill

Bernard Jenkin Excerpts

2nd reading: House of Commons
Monday 11th September 2017 Commons Chamber

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

This Bill is, fundamentally, not a decision-making Bill; it is an enabling Bill—it is an administrative measure. I spent many years on the Opposition Benches—on the Front Bench and on the Back Benches—practising the professional outrage we saw practised very effectively in the Chamber last Thursday and, if I may so, just now by the hon. Member for Penistone and Stocksbridge (Angela Smith). Of course, there are scintillas of truth in the points being made, but we should remember that the big decisions have been made—on 23 June last year and in the article 50 Act. We are leaving the European Union, and a vote against the Bill, as my right hon. Friend the Member for Basingstoke (Mrs Miller) pointed out, is just a vote for chaos and a chaotic Brexit, rather than a smooth transition.

Much of the debate is actually not about sovereignty, but about scrutiny and the proper role of Parliament, as the hon. Member for Penistone and Stocksbridge just said. There is huge complexity to deal with, and a quantity of legislative changes need to be made, but we need to keep this in proportion. If the official Opposition are really serious about having a sensible discussion about how to improve the scrutiny of secondary legislation, and particularly of the so-called Henry VIII provisions, let us have that conversation, and I would be delighted to talk about how we do those things. However, the Hansard Society proposals are far more about the procedures we adopt in this House and in the other place than about making fundamental changes to the Bill, albeit that some changes may be necessary.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

My hon. Friend and I rarely agree totally on European matters, but I actually agree with him that we need a practical Bill, not a policy Bill, that enables us to have a smooth transition. Would he therefore not agree that the whole issue under debate could be solved if the Government agreed to amend the Bill so that they gave themselves only the powers the Secretary of State explained to us yesterday that he requires, and so that it achieves only the ambitions that his letter to all MPs set out? Surely no one would miss the rather sweeping powers in clauses 7, 9 and so on if they were removed, because the Government express no intention of using them in the way everybody fears.

[Mr Jenkin]

My right hon. and learned Friend sets out the common ground we should all be on. However, the debate was not assisted by Tony Blair, who was on the television yesterday speaking about how to deal with this issue. He said:

“Paradoxically, we have to respect the referendum vote to change it.”

There is an understandable suspicion among Conservative Members that some people have not really accepted that we are leaving the European Union. The fact that the official Opposition have chosen to vote against the whole Bill underlines that they are rather reluctant to accept the decision the British people have made.

Before I move on, I should re-emphasise that the Hansard Society proposals have a lot to them, and we should be able to discuss them. I hope that, behind the scenes, colleagues will talk across parties on these matters, as one or two of us have already suggested we should.

However, let me put this in the much wider context, because we are getting rather lost in the detail of the Bill. We are forgetting what the Bill is for and the context it is being discussed in: we are leaving on 28 March—or whichever date it actually is—next year. It might be helpful to have the exit date on the face of the Bill at the outset, to provide additional clarity that negotiations are in progress, or should be.

I think everyone is getting a bit disappointed that there has not been more substantive discussion about the issues that really matter. The European Union’s position is beginning to look more and more unreasonable as it refuses to discuss the end state of the relationship that we all want to see, insisting on an up-front payment, or promise of payment, before it will discuss those matters. I have absolutely no doubt that the EU is playing for time for some reason, possibly because of the German elections, and is likely to crumble on that, and to start to talk seriously about the issues that we need to discuss.

We can talk too much and too glibly about cliff edges; I notice that even the Government have put the term “cliff edge” into their documents. Let us face it—the United Kingdom does not want a cliff edge. We are offering the rest of the European Union seamless trade, as far as possible, no tariff barriers and mutual recognition for products and services.

[Henry Smith (Crawley) (Con)]

My hon. Friend sets out the very essence of the Bill. This is not about a sudden change, but about transposing EU law into British law and evolving as we move forward as a sovereign nation.

[Mr Jenkin]

Absolutely right. The point is that we want that smooth transition; the only reason there is a possibility that there will not be one is the intransigence so far of the European Union. The paradox is that there are people who were very much in favour of Britain’s membership of the European Union who clearly think that the European Union will inflict the most ghastly cliff edge on our country. I think better of the EU. There are sensible people in the European Union who will not want tariffs, or tariff barriers, or new and unnecessary restrictions on trade between our two countries. They will not want to de-recognise so many of the mutual recognitions we already have. They will want to secure the jobs of their people and their countries just as much as we want to secure ours.

Even if we leave without an agreement, I think the biggest challenge is being ready in time. My biggest concern is that there are still parts of Government that do not seem to be preparing quickly enough. On the question of Her Majesty’s Revenue and Customs and the customs arrangements, are those at HMRC spending money on what we need in place in case there is no deal? I keep hearing that they are waiting for instructions, as though there will be something much clearer for them to work against, but we have to face the fact that we might well leave without a comprehensive settlement of some kind, and that our customs arrangements and all the other arrangements will have to be ready in time. This Bill enables us to do that.

I will end my speech a little early by emphasising that a vote against this Bill would be a terrible disappointment, and I would not take such a vote at face value, as I do not think that the vast majority of hon. Members in this House want to create a chaotic Brexit. They will be voting for a tactical defeat, because they know that they cannot succeed in this debate.

We should concentrate on the fact that we have far more in common with our European partners than divides us. That will be the same after we have left the European Union as it is now. I look across the Chamber at the hon. Member for Ipswich (Sandy Martin); we stood together in one of the glorious Suffolk churches of East Anglia last night and sang Beethoven’s ninth symphony and the words of Schiller’s great poem, the “Ode to Joy”. Incidentally, it was composed more than 100 years before the European Union was invented and has absolutely nothing to do with political and monetary union under the European Union. We are leaving the European Union; we are not leaving Europe.

--- Later in debate ---

[Wayne David]

There are many speakers, as we have heard, and I am sorry, but I would rather press on.

In the White Paper of March 2017, it was stated that there would be a significant increase in the decision-making powers of the devolved institutions. That was there in black and white. It also intimated that former EU frameworks would be subject to decisions involving the devolved Governments, but such is not the case. The Bill before us does not return powers from the EU to the devolved institutions, as promised. Instead, in devolved areas, such as agriculture and the environment, power is going from Brussels to London, bypassing and therefore undermining devolution. Moreover, this Bill in effect imposes a freeze on the legislative competences of the devolved institutions. As a report by the Welsh Assembly research department points out, the devolved institutions will not be able to modify so-called retained EU law for Wales and Scotland, but a Conservative British Government will be able to do so for England, and may even be able to do so for the devolved nations.

[Mr Jenkin]

In the last Parliament, the Public Administration and Constitutional Affairs Committee took evidence on this matter from the same academic who advised the Scottish Parliament, and he was very clear that the powers being reserved under these proposals were only ever notionally devolved, because they were of course reserved by virtue of our membership of the European Union. This is not a power grab; the Government’s objective is to make sure that the devolved Administrations finish up with more powers than they had before.

[Wayne David]

We are not talking about notional, theoretical powers; we are talking about actual powers on the statute book, and about whether one institution or another is able to enact laws according to that legislation.

There is a big difference between what was in the White Paper and what is in the legislation before us. What is more, undemocratic changes have been introduced without even a modicum of prior discussion, let alone negotiation, with the devolved institutions. This power grab by the Conservative Government is an affront to the devolved institutions, but it is also a slap in the face of the people of Scotland and of Wales. As Carwyn Jones, the First Minister, said in the Welsh Assembly in July, there is a popular mandate for what the Welsh Government are arguing. To quote him exactly:

“The 2011 referendum…saw a large majority vote in favour of giving this National Assembly primary legislative powers”,

but the European Union (Withdrawal) Bill is

“an attempt to take back control over devolved policies…not just from Brussels, but from Cardiff, Edinburgh and Belfast.”

In his letter to Members of Parliament, dated 7 September, the First Secretary of State said that the arrangement I have described was a “transitional arrangement”. My question is: how long is this transitional arrangement for? How long is the period to which we are referring? How long is the rapid period mentioned in the explanatory memorandum? Is it one month, one year, 10 years, 20 years—how long? This Bill is an undemocratic blank cheque that, if passed, will give unprecedented powers to this Government.

Unfortunately, it is difficult to avoid the conclusion that the Bill has as its prime objective not so much withdrawing Britain from the European Union as concentrating as much power as possible in the hands of a feeble minority Government, headed by a caretaker Prime Minister. Under the cloak of leaving the European Union, the Government seek to emasculate this House and centralise power in their own hands. If the Government were solely concerned about leaving the European Union, there are other ways that it could have been done—other measures could have been put forward—but, no, they chose this particular route. Rather than looking forward to a new and positive relationship with the European Union, this Bill takes us back to the days when the UK was totally London-orientated and inward-looking. That is why I will vote against it, and why I believe that is the right thing to do.

EU Charter of Fundamental Rights

Bernard Jenkin Excerpts

Tuesday 19th November 2013 Commons Chamber

[Chris Grayling]

On the 2011 case, I was not Secretary of State at the time, so I did not take any action at all. That case—this remains the view of my Department—did not restate the legal position. The right hon. Gentleman is right about the protocol, which says that the charter applies to EU law and not to national law. Unfortunately, as we know, the Lisbon treaty is so vaguely worded in many respects that actually it allows the EU institutions to intrude in areas, such as social security, for example, that were expressly not envisioned in the treaty itself.

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

May I suggest to my right hon. Friend that the lawyers who are advising him to do nothing now are the same ones who advised the right hon. Member for Blackburn (Mr Straw) and his Government to believe in the integrity of this opt-out and that the European Court would not come after it? Is my right hon. Friend really advocating a policy of “do nothing”? That seems to be what he is suggesting. What we could do is legislate to protect United Kingdom law from the application of the charter of fundamental rights, as suggested by my hon. Friend the Member for Stone (Mr Cash), the Chair of the Select Committee.

[Chris Grayling]

I am absolutely not suggesting that we do nothing, and that is why we need to get this point clarified in law at the earliest opportunity. The recent Supreme Court case on prisoner voting has reassured me on this issue, but I say to my hon. Friend the Member for Harwich and North Essex (Mr Jenkin) that I have every intention of testing this in law quickly. If we find that the legal position is not what we believe it to be, we will have to take further steps.

Courts Service Estate

Bernard Jenkin Excerpts

Tuesday 14th December 2010 Commons Chamber

[Mr Djanogly]

I do not have an answer to that question. I will look into the matter and come back to the hon. Gentleman.

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

The Minister is to be commended for coming to the House to make an oral statement on what was inevitably going to be a difficult announcement. Will he confirm that Harwich magistrates court was already earmarked for closure by the Labour Government? Can he also give me an assurance that Harwich will stay open until the new court facilities in Colchester have been constructed and are up and running?

[Mr Djanogly]

The answer is yes, in both cases.