Parliamentary Scrutiny of Leaving the EU

Dominic Grieve Excerpts

Wednesday 12th October 2016 Commons Chamber

[Keir Starmer]

Absolutely, but I take this in two stages because both are important. Scrutiny—putting the plans before the House—really matters. There is a separate argument about a vote, and I say that there should be a vote, but we must not get to a situation where, to resist the vote, the Secretary of State will not even put the plans before the House.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Is not the convention very clearly established that a major treaty change has to be triggered by an affirmative resolution of the House? The fact that that may only be a convention is still something that must be respected. After all, there are lots of conventions, such as the convention that a Government resign if they lose a vote of no confidence. That is no more than a convention, but Members might be a bit surprised if a Government were not to go in those circumstances.

[Keir Starmer]

The prerogative has come up so often that I will deal with it now in substance. Prerogative powers, of course, developed at a time when the monarch was both a feudal lord and Head of State. That is the origin of prerogative powers, but they have changed over time, yielding where necessary to the demands of democratic accountability. There are plenty of examples, as the Secretary of State will know, in the courts of that change in accountability, but there is also the example of the prerogative power to commit troops in armed conflict. In theory, the Prime Minister and the Cabinet retain the constitutional right to decide when and where to authorise action, but in practice Governments in recent times have ensured parliamentary debate and a vote.

Responding to the Chilcot report earlier this year, the then Prime Minister made the point during Prime Minister’s questions when he said:

“I think we have now got a set of arrangements and conventions that put the country in a stronger position. I think it is now a clear convention that we have a vote in this House, which of course we did on Iraq, before premeditated military action”.—[Official Report, 6 July 2016; Vol. 612, c. 881.]

A strong political convention modifying the prerogative has thus been set.

--- Later in debate ---

[Edward Miliband]

That might well be the case. We only need to read the newspapers to see that if debates are not taking place clearly about the Government’s position in this House, they are certainly taking place clearly in the Cabinet, and the Chancellor of the Exchequer seems to be in a slightly different position from some of his colleagues.

I want to conclude—because there are other people who want to speak in this debate—by returning to where I started. This issue goes so far beyond party politics and so far beyond whether we were for remain or leave in the referendum. It also goes so far beyond our tenure in this House, because the decisions we make in the next two or three years will have implications for decades to come, so I implore Members in all parts of the House, particularly those on the Government Benches. I know there will be pressure not to speak out—some of them have honourably done so—but I hope we will hold to the best traditions of this House as we think about our duties, because our duties are not about procedure.

[Mr Grieve]

I can give the right hon. Gentleman an absolute, categorical assurance that, as far as I am concerned, my duty to my constituents transcends duty to party in this matter. I agree with him totally that as the effect of this change is so major, we each have to look at how we achieve the best result for our country.

[Sammy Wilson]

rose—

--- Later in debate ---

[Nicky Morgan]

rose—

[Mr Grieve]

rose—

[Sir William Cash]

I am not giving way for the moment. I am saying that we cannot both be in the single market and repeal the 1972 Act, whose laws are part of the jurisdiction of the European Court of Justice. I will give way now to the former Attorney-General.

[Mr Grieve]

My hon. Friend will doubtless agree with me that over the next three to four years we will get out of one treaty and replace it with at least another, if not a multiplicity of treaties—part of the 13,000 by which we are bound internationally at present. He might also agree that Norway provides an example of a country that participates in the single market without being a member of the European Union. Does that not completely destroy the argument that my hon. Friend has just put forward?

[Sir William Cash]

It does not, because I said implicitly that we would not be able to go into the European economic area for that very reason. The British people have spoken in the referendum, and everyone in the Chamber says that they respect the views of the British people, yet at the same time we hear these weasel words that somehow imply that it is possible to leave the European Union, repeal the European Communities Act 1972 and still remain within the jurisdiction of the European Court of Justice. That is just nonsense—political and legal nonsense.

[Nicky Morgan]

rose—

[Mr Grieve]

rose—

[Sir William Cash]

I have given way enough for now, and I want to continue with what I have to say. I shall come back to this issue on another occasion, but my position is abundantly clear and correct: we cannot both be in the single market and repeal the 1972 Act.

What is the meaning of the answer to the question? It meant that, by the consent of the voters given by the sovereignty of this House, this Parliament agreed to give to the British people the right to transfer from Members of Parliament in their place today and beforehand to them the decision on whether we remained or left. That decision was taken by a majority of something of the order of 6:1. In my judgment, it is unseemly if not absurd for the same Members of Parliament to say, “Oh, well, we did not like the outcome of the result” and then to say “We are now going to mitigate or try to overturn it”.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

Mr Speaker, I apologise for the fact that my duties as Chair of the Intelligence and Security Committee meant that I had to be absent for part of this debate.

I greatly welcome the debate, and I entirely welcome the motion that was tabled to precipitate it. I agree with its content. I also agree with the Government’s amendment, which seems to me to be perfectly complementary to the motion. I am particularly pleased that it appears to be a sign that the Government are moving on the issue of parliamentary involvement, a point to which I will return in a moment.

I entirely accept the verdict of the electorate given on 23 June. It was a significant majority, albeit a small one—1,200,000 is not negligible. It is our duty as parliamentarians to try to put that into effect. In doing so, we as parliamentarians, and indeed those in government, have to have regard, as we always do, to the security of our country, the economic wellbeing of its citizens and their quality of life. The test for us is going to be how to reconcile the one with the other.

I was concerned to hear my hon. Friend the Member for Stone (Sir William Cash) suggest, as I have heard previously, that the referendum result provides a restricted number of choices as to what we can now do. It is perfectly plain that it does no such thing. We have to leave the EU, but the range of the choices thereafter, in terms of our relationship with the EU, runs from one akin to that of Norway to one akin to that of North Korea, were we minded to pursue it.

I do not have a prescriptive view as to what that relationship should be. I am quite happy to debate those issues and listen to colleagues, but what I am not prepared to do—I say this with emphasis—is have options closed down by diktat, from wherever it may come. I am sorry to have to say this, but that includes from colleagues and the Executive. They will have to be debated in this House, and this House will have to give its approval. I am bound to point out that it was Parliament that decided on the referendum, not the Executive. It is our task to honour its terms, even if it is the Executive’s task to implement the negotiating process.

I also worry very much about the excessive euphoria that has followed this process. I hope that I am not too gloomy, but I see it as fraud with risk. There is the risk of the economic damage, as was commented upon by my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke)—I will not pursue that now. I have to say that, as a lawyer, I see the repeal process and our leaving as a legal nightmare, and one that will take up an endless amount of the House’s time, to the prejudice of many other priorities on which we should be focused. It undoubtedly impinges on the devolution settlements and competence. We have a duty to maintain legal certainty and the rule of law, which will be jeopardised in the process. There are private legal rights that are likely to be affected, some of which might lead to litigation and claims for compensation. Our international legal obligations are engaged, particularly with the Irish Republic, and that is a matter of vital national interest.

Surrounding all that is the fact of the risk of this process being exploited by other countries with interests inimical to those of the United Kingdom, ranging from Russia, which is a predatory state and an international disturber, to the Spanish attitude to Gibraltar, which is also capable of operating greatly to our prejudice and theirs. These are all matters that we will have to discuss.