Prorogation (Disclosure of Communications)

Debate between Dominic Grieve and Chris Leslie

Monday 9th September 2019 Commons Chamber

[Mr Grieve]

I wish to conclude. Unless a Member has something very special to say, I would like to get this done.

[Mr Chris Leslie (Nottingham East) (IGC)]

rose—

[Mr Grieve]

I give way.

[Mr Leslie]

I am very grateful to the right hon. and learned Gentleman. He has had all sorts of emollient assurances from the Chancellor of the Duchy of Lancaster, but the Daily Mail is reporting right now that:

“Downing Street not in any mood to bow to Grieve’s demands…No. 10 source: ‘Under no circumstances will No. 10 staff comply with Grieve’s demands regardless of any votes in Parliament.’”

If the Chancellor of the Duchy of Lancaster intervenes on the right hon. and learned Gentleman again he can be pressed to assure the right hon. and learned Gentleman that he will not see Parliament treated with such contempt.

[Mr Grieve]

I am afraid this classically illustrates the problem that we now have: these extraordinary utterances —pronouncements—from No. 10 Downing Street that bear absolutely no relationship with the operation and conventions of our constitution. It is impossible to know whether they are froth, whether they are Mr Cummings’s thoughts, or whether in fact they represent some settled policy view of Government, in which case this country is facing, frankly, a revolutionary situation in which this House has to exercise the utmost vigilance to ensure that our rights and privileges are not simply trampled upon.

I am very mindful of the fact that in this current crisis we are a divided country and a divided House, which pains me very much. I would like to work, even with those with whom I disagree such as some of my right hon. Friends on the Front Bench, to try to get this matter resolved in a way that is compatible with healing some of the divisions in our country, but that simply is not going to happen if the atmosphere of confrontation keeps being ratcheted up, slowly undermining the institutions that are the only props of legitimacy—that is the truth, for all of us—and in which everybody is happy to go into greenhouses and chuck bricks all over the place but expect the structure to provide some shelter afterwards.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

Tuesday 12th June 2018 Commons Chamber

[Mr Grieve]

We have to be realistic, and there is an issue here. If the Government wanted to accept the entirety of the amendment, that could probably be done this afternoon and that would be the amendment that went back to the Lords, incorporated in theirs. In fairness to the Government, I have always appreciated that there might be some tweaking to be done. I understand that. Having said that, does the hon. Gentleman agree that there needs to be some certainty that the substance of this amendment will come with the acceptance of the Government in the other place?

[Mr Leslie]

That is right, and a bird in the hand is worth two in the bush. I suggest that it is far better to have that amendment in the Bill as it goes to the other place, which may decide to tweak or change it following discussions. That seems to reflect what feels like the majority view in the Chamber today on the need for a sense of certainty that something will be done. This is not just a matter of one Minister, because a Minister’s word can be given and then changed—

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

3rd reading: House of Commons & Report stage: Second Day: House of Commons
Wednesday 17th January 2018 Commons Chamber

[Mr Grieve]

The issue of the withdrawal agreement was supposed to be resolved last December, as part of phase 1 of the negotiations. Does the hon. Gentleman agree that it is abundantly clear that there are massive potential pitfalls, particularly in respect of the relationship with the Irish Republic, in the translation of what appears on the face of it to have been a mutually convenient fudge into what will in fact be a binding treaty obligation?

[Mr Leslie]

That is absolutely right, and the right hon. and learned Gentleman neatly and helpfully moves me on to my new clause 3, which deals with the question of the Irish hard border. I think that many people read the phase 1 agreement in an optimistic light. In many ways, those words were all things to all people. The can was kicked down the road, but there will have to be a translation into some sort of legal text by the time we get to the withdrawal agreement. Heaven help us when the two sides to the negotiations have to start talking in specific terms.

The Prime Minister had a slightly different view from the Republic of Ireland of what the phase 1 agreement meant. She reported back to the House that it was simply to be restricted to the issues listed in the Belfast agreement, which does not, of course, include trade in goods, to mention just one small policy area. There are massive questions about the border between Northern Ireland and the Republic of Ireland. People in that area share reciprocal healthcare, as well as environmental factors such as rivers, streams and lakes. They have a shared energy market and shared fisheries, food and plant arrangements. All those are shared because of the very geography of what are two distinct countries, so trying to fudge the issue just will not work, particularly if the UK is a third party.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

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

[Mr Grieve]

I am certainly not going to make a mini-speech; I said what I felt was sufficient. I offer the new clause not as a perfect solution, but as an alternative to what I consider to be the rather incoherent approach that the Government have adopted. The new clause seemed to me to have some merit, especially because it includes a provision allowing the status of retained EU law to be altered by statutory instrument, so the House could be done with the process quite quickly. I thought that it was a way of trying to resolve what I saw as a practical problem. Let me emphasise that it was not intended to be a weapon with which to beat Ministers on the head. I saw it merely as a sensible way of trying to take things forward, and I present it to the Committee in that spirit. It is not perfect, but represents another way in which we might approach the issue.

[Mr Leslie]

This may seem a dry and technical question, but from time to time Parliament does reflect on the nature of legislation that has been passed. We all assume that it has been accrued through Acts of Parliament or through secondary legislation, but we are now importing a third category, that of retained EU law, into our legal context, and we need to know how to treat it in the future. I do not think that the Government have addressed that question adequately, which is why I think that new clause 13 is of particular interest.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

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

[Mr Leslie]

I have been vexed and exercised for quite a long part of the past 40 years, but that is my problem. The hon. Gentleman should know that as we go forward we are creating a new type of legislation. It is true that many of the European directives and regulations have been adopted over the years in different ways, but we are now importing this great body of EU retained law. It is going to affect him and his constituents, as well as my constituents. The first point to make is: can we understand what it is? That provides a useful opportunity in this exercise—

[Mr Dominic Grieve (Beaconsfield) (Con)]

The hon. Gentleman may agree with me that if there are deficiencies in the way EU law has been imported into our law, the last thing we want to do is to perpetuate them by keeping the uncertainties after we have gone. Yet schedule 5 raises a number of uncertainties, which this House would do well to address.

[Mr Leslie]

We are doing our duty by at least trying to comb over these issues now.

I wish to commend the Labour Front-Bench team on their amendment 348, which seeks to ensure that impact assessments are made properly and thoroughly before we take many of the decisions in this whole Brexit process. We already know enough about what has happened with the Brexit Secretary promising impact assessments and their turning out to be sectoral analyses. Many of us will have gone to the reading room and looked at the hastily written 50-odd documents, which would be good if someone was writing a master’s degree dissertation on the aviation sector—they are full of facts and information—but do not really provide much more analysis than people can already get off Google.

Where we did get an insight, although it may have been a slip of the tongue, was when the Chancellor of the Exchequer appeared before the Treasury Committee on 6 December and said that he has

“modelled and analysed a wide range of potential alternative structures between the European Union and the United Kingdom”

and that

“it informs…our negotiating position”.

So obviously there does exist within government some level of impact assessment and analysis that has not yet been placed in the public domain. It might be that the Brexit Committee wishes to explore that further or that the Treasury Committee wishes to do so, but it is important that we know whether this is simply a reference to the pre-referendum work that was done under the former Chancellor George Osborne or whether further assessments have taken place, independently undertaken by the Treasury. We need to know what analysis the different Departments have undertaken and what sort of modelling on the different sectors of our economy has been done.

--- Later in debate ---

[Mr Leslie]

That is the level of analysis and assessment that deserves to be shared and that was not available to the public prior to the referendum. It should not be dismissed but made more widely available. Members, and beyond them voters, can weigh up the different opinions. Some Members might rubbish representatives of the steel sector and say, “What do they know? I know better,” but we can weigh these things up and bring them into balance. We have the opportunity to debate transparency. Let us allow sunlight to flood over this issue and make sure that we are better informed going forward than we were before the referendum.

[Mr Grieve]

It is a pleasure to participate in the Committee’s consideration of schedule 5 and clause 13, although the reality is that the clause says very little and the schedule says a great deal.

As we have just heard, part 1 of schedule 5 provides for the publication of retained direct EU legislation by the Queen’s printer, which should be completely uncontroversial because its purpose is to promote transparency and access so that people in the United Kingdom can know what the law is. That is not some slight matter. One of the points that has been gently canvassed in the debate so far is the extent to which EU law may have created, in the way it has been brought into UK law, a degree of uncertainty as to what it is, in which case that is the last thing we should retain when we carry out this retention of the law. One of the central principles of the rule of law is that the law must be

“accessible…intelligible, clear and predictable”.

That is one of Lord Bingham’s principles of the rule of law, and it should matter to the House very much with respect to how it legislates. People need to be able to understand what activity is prohibited and therefore discouraged, and what their rights are so that they are able to claim whatever rights they have.

The interesting thing about part 1 of schedule 5 is that paragraph 2 empowers Ministers to make exceptions to the duty to publish retained direct EU legislation by

“giving a direction to the Queen’s printer specifying the instrument or category of instruments that are excepted.”

There appear to be no limitations on that power and no guidance on when such instruction might or might not be appropriate. My first question to my colleagues on the Treasury Bench, and particularly my hon. and learned Friend the Solicitor General, is: what is the Government’s intention in respect of that exception? Why is it there—we need to understand why it has been included in the Bill—and how will it be used in practice? It seems to me that it is desirable that the entirety of retained direct EU legislation should be made available through the Queen’s printer, so what is the intention as to the circumstances in which a Minister might remove himself from the duty and give a different direction? There is, perhaps slightly to my regret, no amendment to address that question—had I focused on it slightly better at an earlier stage and not been diverted by other matters, I might have tried to tease it out by tabling an amendment—but as we are also debating whether the clause and schedule should stand part of the Bill, it is important that we give the matter some consideration. Indeed, it ties in exactly with what the hon. Member for Nottingham East (Mr Leslie) said in introducing new clause 21, which is on exactly the same principle or philosophical issue of providing certainty.

My second question is about part 2 of schedule 5, which provides for Ministers by regulations to enable or require judicial notice to be taken of retained EU law or EU law. There are no limitations whatsoever on this delegated legislative power to enable or require judicial notice to be taken and, as far as I can see, nor are there any provisions to require that a Minister can make such regulations only under certain circumstances—for example, regulatory harmonisation might be a legitimate reason for making such regulations. This is a classic Henry VIII power, as paragraph 4(3) provides total Henry VIII powers, and is only limited, under paragraph 4(4), to primary legislation made or passed before the end of the Session in which this Bill is passed.

All that takes me back to an interesting debate the Committee had on a previous day—which one has rather faded out of my memory—in which my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) and I raised our continuing concerns about the judiciary having a lack of clarity about how they were supposed to interpret and apply retained EU law. Lord Neuberger and Lady Hale have expressed concern that the Bill is insufficiently clear about how retained EU law should be interpreted by the courts post exit. Lord Neuberger in particular was concerned by the prospect of the courts having to determine questions of regulatory harmonisation against divergence between UK and EU law—an essentially political topic, with possible economic consequences to the interpretation. As it happens, regulations made under part 2 of schedule 5 might address the judiciary’s anxiety about the need for better guidance on retained EU law, but what troubles me is that this provision again subtly sidelines Parliament from any role in providing guidance, as it is a matter of Executive discretion.

I must say to my hon. and learned Friend the Solicitor General, and to my other colleagues on the Treasury Bench, that I do understand the Government’s difficulties. The whole Bill is about an accretion of power to a Government who do not really know how they are going to have to use that power and are fearful that something will come up that will require them to act swiftly, and who therefore think that they have to maximise the tools at their disposal.

Forgive my repeating this—I think that the Bill has been quite well improved as it has gone through the House and, indeed, some of the assurances that have been given will lead to further improvements, I have no doubt, on Report—but it was this sort of thing that made me describe the Bill as a monstrosity on Second Reading. It is so contrary to the normal way in which one would expect to legislate for Parliament both to grant the powers that a Government need, including, where necessary, powers of secondary legislation, and at the same time to make sure that these cannot run out of control. On the plain face of the Bill, this is really one of the immense Henry VIII powers. The Government have decided to resolve this issue by taking a very big sledgehammer to the normal structures.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

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

[Mr Leslie]

It is touching that the right hon. Gentleman takes those assurances from Ministers at face value, but the Ministers may not be here for very much longer. Who knows? If we are going to make policy changes, that should be done in a Bill that comes before Parliament, or in a statutory instrument subject to affirmative resolution.

I now invite Members to pick up their copies of the Bill, because I want to deal with a couple of provisions in clause 7 which I think contradict the understanding of the right hon. Member for Wokingham (John Redwood) of the scope of the order-making powers that are being taken. It is, in fact, fairly wide. Clause 7(4) states:

“Regulations under this section may make any provision that could be made by an Act of Parliament.”

In other words, a provision in a statutory instrument could have the same effect as one in primary legislation.

[Mr Dominic Grieve (Beaconsfield) (Con)]

When statutes are being considered and Bills are being drafted, there does on occasion come a point at which we must accept that assurances given, for example, at the Dispatch Box will have to complement the inevitable small grey areas. However, that should not prevent us as a Parliament from scrutinising legislation and insisting that, so far as possible, it is drafted in conformity with the purpose for which the Government say that they intend to use it.

[Mr Leslie]

That is why Members often say in the House, “Let us place it on the face of the Bill”, which means “Let us put in writing, in black and white, something that can then be held up in a court of law”, rather than a mere verbal promise from a Minister who, as I have said, could be here today and gone tomorrow. These things matter, and if we are to do our job properly we need to get our statute right.

It is not an exaggeration that clause 7(4) represents a massive potential transfer of legislative competence from Parliament to Government. It is a sweeping power that would make Henry VIII blush if he were to see it today. My amendment 57 would delete the sweeping nature of clause 7(4), because Ministers have not ensured that their powers are as limited as possible; on the contrary, they have ensured that they are as exceptionally wide as possible.

--- Later in debate ---

[Mr Grieve]

Does the hon. Gentleman agree that those who draft legislation go off to Government Departments, show the draft and ask whether that covers all the things that need to be covered, and are then inevitably told that the Department is worried that something has not been covered? Perhaps this should be an encouragement to those on the Treasury Bench to go away and think again about whether the list they have produced is not in reality exhaustive. If it is not, perhaps they would like to identify during today’s debate where they think there might be these extra powers that take them beyond the limits they have listed.

[Mr Leslie]

The right hon. and learned Gentleman and any other Member who has had the privilege of serving as a Minister will know exactly what civil servants will advise, which is, “Well, you don’t know the exact circumstances, so seek as wide a power as you can possibly get away with through Parliament, if it will turn a blind eye to it. We can deal with the consequences thereafter.”

Unfortunately for them, Ministers will not be able to get away with that on this occasion, because we have spotted this land grab attempt. It is not appropriate; if they feel that there should be exceptions or that certain circumstances should be accounted for, those must be set out in the Bill, not just left in these current loose terms.

Current Ministers might feel that they are responsible stewards of Government, but I invite hon. Members to imagine circumstances in which we end up with a malign Government of some sort, shape or variety, such as some sort of extreme Administration—who knows what might happen in years to come? These Henry VIII powers are extremely sweeping. They will be available to Ministers in years to come and could leave the door open to some quite arbitrary near-autocratic actions of a future Government.

For example, if a future Government sought to lift the 48-hour working week provisions that EU law currently gives to employees in this country, Ministers would by order potentially have the scope to do that under the powers in clauses 7 and 9. If Ministers wanted to require the banking sector to have more capital requirements under these provisions, they would be able to simply make those orders. If Ministers wanted some sort of aggressive or inappropriate state intervention to distort competition, favouring one producer over others, they would be able to do that through the provisions on these order-making powers.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

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

[Mr Leslie]

My proposed new clause seeks to elicit from the Government information on how they are going to deal with the issue. The Prime Minister has said that she accepts that the European Court of Justice would need to continue to have jurisdiction during a transition. However, there are problems in the Bill.

I invite hon. Members to turn to page 3 and read clause 5(1), which states:

“The principle of the supremacy of EU law does not apply to any enactment or rule of law passed or made on or after exit day.”

Therefore, under the Bill as framed, the ECJ arrangements will not apply beyond exit day. Further down on page 3, clause 6(1) and (2) similarly state that no regard will be made to the European Court after exit day.

[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.

European Union (Notification of Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Mr Grieve]

I want to support the Government in carrying out an efficient and effective Brexit but, after listening to some of the contributions this afternoon, I think I am living in wonderland.

I will focus solely on Lords amendment 2, particularly subsection (4). The first thing to understand is that, as matters stand, there will be a need not for resolutions of this House, but for primary legislation to complete the process. In fact, there will be a need for primary legislation even if we have no deal at all. I do not know when the Government want to deal with that. They could conceivably try to do it during the course of the great repeal Bill, but they have not suggested that that is what the great repeal Bill—which is, in fact, an entrenchment Bill—is all about. So it seems that if there is no deal at the end of the process, there will have to be primary legislation passed by this House, if that has not already been done.

Interestingly, far from the Lords trying to lead to great litigation, their view—if the Government bother to read Lord Hope’s speech—was that litigation could be avoided by tabling the amendment and providing for a resolution mechanism at the end. I can promise my hon. and right hon. Friends who think that there is some whizzo way of getting around the litigation that, if they do not follow proper constitutional process, there will be litigation, and that litigation will hold matters up.

Now, I am not so concerned about amendment 2. I am concerned about getting an assurance from my right hon. Friend the Secretary of State for Exiting the European Union that, if there is no deal at the end of the process, which will be a very significant moment in this country’s history, Parliament has an opportunity to debate and vote on that. Far from that being an obstruction of the process, I would expect it to be part of the normal constitutional process and the Government to seek the endorsement of the House for that very significant act. I worry that my right hon. Friend—who, I think, personally may well agree with me—has been prevented from saying that at the Dispatch Box. I am afraid that I am not prepared to follow processes that appear to be, frankly, deranged.

There is a clear way of doing things. If we follow them, we will come up with the right decisions at each point; if we do not, we will mire ourselves in chaos. I want to support the Government, but I have to say, most reluctantly, that if we persist with this, I cannot support the Government this evening when it comes to amendment 2. I am very sorry about that. I would like to be able to support the Government because the critique of the Lords amendment has some force, but someone has to put down a marker that we have to follow a proper process in the way in which we carry out Brexit.

[Chris Leslie (Nottingham East) (Lab/Co-op)]

I commend the right hon. and learned Member for Beaconsfield (Mr Grieve) for his speech. Notwithstanding my obvious support for the Lords amendment on EU nationals, I urge Government Members to think carefully about what they are being asked to do by Ministers today. The Lords have already inserted into the Bill the amendment to give Parliament a meaningful vote, and Ministers are asking hon. Members tonight to wrench that out of the Bill and delete it. As the Bill stands, it provides that parliamentary scrutiny and authority. Government Members should ask themselves whether they really want actively to go through the Lobby and delete that from the text of the Bill.

Ministers have asked hon. Members to do a number of things. They say, “Don’t tie the hands of the Prime Minister. Whatever you do, give her unfettered power to negotiate in whatever way she likes.” I say to those Ministers and to hon. Members that we should not be putting power entirely in the hands of one person—the Prime Minister—without any insurance policy whatever. With the greatest respect to Ministers, the Prime Minister decides who is on her Front Bench, and parliamentary democracy is the insurance policy that we need throughout the process. We should not be frightened or shy of that. We should welcome it because it is a strength and it is a part of the process.

The Government say, “Take back control.” Yet at the same time they are asking us to muzzle Parliament for the next two-year period by saying, “Well, whatever happens, Parliament may not have a say on that.” We could find ourselves in circumstances where the European Union offers a really good deal but the Prime Minister, singularly, on her own—or his own, of course, because it depends on who the Prime Minister is in two years’ time—could say, “Absolutely no deal.” This Parliament would have no choice but to accept that. We would have no say on the matter.

Ministers ask us to accept their verbal assurances. Well, Ministers are here today, but could be gone tomorrow. May I speculate that we could have a different Prime Minister by the time we get to spring 2019? Who knows? It is possible that the right hon. Member for Uxbridge and South Ruislip (Boris Johnson)—the Foreign Secretary, no less—could be Prime Minister one day. He said at the weekend that it would be

“perfectly okay if we weren’t able to get an agreement.”

He could be Prime Minister—Government Members do not know—and that would be the situation we would have to face, with no votes and no rights for Parliament. Verbal assurances are not sufficient.

European Union (Notification of Withdrawal) Bill

Debate between Dominic Grieve and Chris Leslie

Committee: 2nd sitting: House of Commons
Tuesday 7th February 2017 Commons Chamber

[Chris Leslie]

I would like to move on because other hon. Members want to get into this discussion.

The wording of new clause 110 is very deliberate in talking about the new relationship as well as a new treaty. It is important that we take the opportunity that the Supreme Court has given us. Not only that, but we should listen to the entreaties of the Prime Minister herself in her own White Paper, where the 12th of her 12 points said that we would not aspire to a cliff edge—that we would try to get a deal. This new clause simply seeks to facilitate, in many ways, the role that Parliament could have in achieving the very thing that the Prime Minister has said that she wants.

I am afraid to say to the Minister that Hobson’s choice, take-it-or-leave-it style votes are not acceptable and not good enough for Parliament. We must have a continued say in this. I urge members of the Committee, across the parties, to consider the role that new clause 110 could play in making the vote meaningful.

[Mr Grieve]

It is a pleasure to participate in the debate. I agree with one comment that the hon. Member for Nottingham East (Chris Leslie) made when he spoke to new clause 110: the problem that bedevils this debate is that we are in a grey and murky environment when it comes to ascertaining how the process will or should unfold. As somebody who campaigned to remain, that was one of the things that worried me at the time, but I have to accept that the electorate have spoken. For me, the key issue is how I can help the Government to navigate some of the reefs that seem to be present so that we can achieve a satisfactory outcome and try to give effect to the expressed will of the electorate.

Our problem is that we cannot predict what the situation will be in two years’ time. We have no idea what the political landscape will be in this country. We do not know what the economic conditions will be, and we do not know whether we will be doing very well in the run-up to Brexit or very badly. We cannot predict the political landscape on the European continent or the state of the European Union, and how that might affect the negotiations. Nor can we predict the wider security situation on our continent.

That is why the idea that the House in some way forgoes its responsibility to safeguard the electorate’s interests because a referendum has taken place is simply not a view to which I am prepared to subscribe. In such circumstances, we need to have regard to the situation and to the difficulties that the Government face because of its unpredictability, but we must rule nothing out.

To pick up a point that has been made—I repeat it, because it is my position and I shall hold to it until the end—public opinion on this matter may change radically, and the House would be entitled to take that into account. Equally, I accept that at the moment there is no such evidence, and it is our duty to get on with the business of trying to operate Brexit.

How do we introduce safeguards into the process? Of course there is an ultimate safeguard, as the House has the power to stop the Government in their tracks, but that tends to be a rather chaotic process that leads, usually, to Governments falling from office. It is an option that one can never entirely rule out in one’s career in politics, but it is not one that I particularly want to visit on my Front-Bench colleagues. However, this is an important matter, and one of the risks that they undoubtedly run in this process is that it could happen to them. We cannot exclude that possibility.

It is very much better that we should have some process by which Parliament can provide input and influence the matter in such a way as to facilitate debate and enable us collectively to reach outcomes that we can, at least, accept and that may be in the national interest.