Leaving the EU: Parliamentary Scrutiny

Hilary Benn Excerpts

Thursday 28th June 2018 Commons Chamber

[Hilary Benn (Leeds Central) (Lab)]

I thank the Backbench Business Committee for giving me the opportunity to present the sixth report of the Exiting the European Union Committee, on parliamentary scrutiny and approval of the withdrawal agreement and negotiations on a future partnership. I am grateful to all those who gave evidence to the Committee, including two Ministers from the Department for Exiting the European Union—and it is good to see a third here today. I am also grateful to the terrific team who support us in our work, and to all the members of the Committee. On occasion we are not able to agree on everything, but that is the nature of Brexit.

The Committee thought that it would be helpful to the House to set out the task that will face us as the process of leaving the European Union unfolds, and that is what the report covers. Let me say first that time is very tight. Even if we secure a withdrawal agreement and a political declaration at the October Council—and that must now be in doubt—the Committee will expect to take evidence from the Secretary of State as soon as possible thereafter so that we can report to the House. That would probably take us to about mid-November for Parliament’s debate and meaningful vote to approve the agreement. We recommend that the debate should last at least five days, which is the amount of time that was provided in 1971 for the House to debate whether we should join the common market.

This will be a very important moment, and the Committee believes that the debate will need to be managed in a way that gives the House an opportunity to express its opinion clearly. We recommend that the Business of the House motion should make it possible for the Speaker to select a series of different amendments, and we are asking the Procedure Committee to advise on how that could best be done.

If this House and the other place approve the withdrawal agreement, the Government will introduce a withdrawal agreement and implementation Bill to give effect to it in UK law. The Bill will have to receive Royal Assent before we leave the EU, because otherwise the UK would be bound by the agreement without the legislation to implement it. That would put the country potentially in breach of international law, and would create legal uncertainty for businesses and citizens.

We could have just three to four months, or approximately 60 to 70 sitting days, in which to pass the Bill. Given that it took more than 11 months for the European Withdrawal (Withdrawal) Act 2018 to complete its passage, that is not a lot of time for the scrutiny that will be required. We then need to add to that the 21-day CRaG process—which relates to the Constitutional Reform and Governance Act 2010—for the ratification of treaties, which is likely to take place in parallel with the withdrawal agreement and implementation Bill, and the time required for other Bills to do with Brexit, and statutory instruments that will need to be passed before exit day. We shall be legislating for a new immigration system, a new customs system, new systems for agricultural support, a new legal basis for management of our fisheries, and lots of other things. When we consider all that, the scale of the task becomes very clear.

Now, let us imagine for a moment that the withdrawal agreement and political declaration are not finalised at the October Council. Given where we are, that would not be surprising. Indeed, the draft conclusions from the European Council suggest that there will not be a breakthrough in negotiations today or tomorrow. On the contrary, the EU is saying that we need to speed up the process—although I would observe that it takes two to move faster—and it wants much greater clarity about what the UK is seeking for the future partnership.

The fact that, two years after the referendum, Ministers have yet to reach agreement on what kind of customs arrangements they would like with our biggest, nearest and most important trading partner reminds us how much more is still to be done. It is also a cause of growing concern to business, as we have seen in the last couple of weeks, and there is still no agreement on the backstop to prevent the return of a hard border between Northern Ireland and the Republic. Today’s European Council was once billed as a “make or break” meeting on the Irish border, on which progress would be needed to keep the negotiations on track, but that does not seem likely either now.

If there is no agreement until November or the end of the year, that will leave even less time for Parliament properly to scrutinise the proposed deal and to put in place the required legislation by March 2019—and, of course, we are not the only Parliament that must approve the agreement. As the Committee heard from Guy Verhofstadt MEP last week, the European Parliament needs three months in which to consider and give its consent to the agreement before the EU can conclude it. He said that the Parliament must receive the deal by the end of this year, or it will not have enough time to vote on it by March next year.

Then we come to the meaningful vote in the House. If we approve the agreement, matters can progress, but what if we choose to place some conditions on our approval? What if we reject the agreement? What if the European Parliament rejects it? The Secretary of State has previously said that the House of Commons voting down the deal would mean the UK leaving without a deal, but the Committee does not accept that.

In considering an amendable motion, the House of Commons would have the opportunity to make its reasoning clear in any decision to reject the agreement or to place conditions on it. In such circumstances, the House would surely expect the Government to take full account, to seek to re-enter negotiations if required, and then to come back to the House with a further motion. That is why we say in our report that it is important for Parliament to be able to express its view clearly and advise the Government on how to proceed. The Government would then need to return to the House with any renegotiated text and resubmit the motion, because they cannot introduce the withdrawal agreement and implementation Bill until Parliament approves the agreement.

The Committee remains concerned that the looming deadline of March next year leaves very little room for manoeuvre. We call on the Government to publish details of their intended legislative timetable, the publication dates of any White or Green Papers, and any contingency plans for handling a no-deal outcome. We reiterate the recommendation in our third report that the Government should be prepared to seek a limited extension to the article 50 period in the event that substantive aspects of the future relationship remain to be agreed, or if there is a lack of parliamentary consent to the withdrawal agreement, or if there is no deal. However, we do recognise that it is by no means certain that the EU would respond positively to such a request.

Finally, I turn to the negotiations on the future relationship. Assuming that a withdrawal agreement and political declaration is concluded, we will have only 21 months from the date of our withdrawal to the end of the transition period in December 2020 in which to turn a political declaration into legal text on the future relationship and for such a treaty—and it could be more than one treaty—to be ratified. I think we all know that the negotiators will be dealing with a task that is frankly unparalleled in its scope and complexity and in the detail that will be required. There is a possibility that this will prove insufficient time to do all that work. We therefore call on the Government to seek that a mechanism be put into the withdrawal agreement for the extension of the transition period if that is required. We also call on the Government to ensure that Parliament is given a meaningful vote on the final text of the agreement with the EU that will cover the UK-EU relationship in the years ahead.

The report says:

“The debate on the motion for approval of the Withdrawal Agreement and Political Declaration will be one of the most significant parliamentary debates in a generation.”

We all want to do that moment justice, and I hope that our report will assist the House in doing precisely that.

[The Parliamentary Under-Secretary of State for Exiting the European Union (Mr Steve Baker)]

The Government are pleased to welcome the statement made by the Chairman of the Exiting the EU Committee. The Government extend our thanks to the members of the Committee for the time and consideration that they have invested in producing this report and in reflecting on the issues that the Chairman has so ably and clearly set out. I look forward to reading the report and assure the Committee and the House that a Government response will be forthcoming in the usual way.

[Peter Grant (Glenrothes) (SNP)]

I thank the Select Committee Chair for his statement and for his heroic efforts to reach consensus when at times that is never going to be possible. I also endorse wholeheartedly his gratitude for the efforts of the Committee staff, who have done a fantastic job in serving the Committee.

Paragraph 17 of the report points out that Parliament currently has a role in scrutinising any EU external agreements, including trade agreements. As things stand, when we start to negotiate trade deals on our own, there is no such role for Parliament in scrutinising those deals. Is the report saying that as a result of Brexit, the important parliamentary scrutiny of trade deals will be less than it is just now?

[Hilary Benn]

The hon. Gentleman, who is a valued member of the Select Committee, has raised a very important point that is highlighted in the report. It is clear, leaving Brexit to one side, that there is growing wish on the part of this Parliament, and Parliaments across Europe and around the world, to have a say in approving trade deals that may be negotiated in future, because they increasingly have an impact on many aspects of our national life. It is important, as we say in the report, that Parliament can have a meaningful vote on the future trade deal that we have with the European Union when the negotiations are concluded—in time, we hope, for the end of the transition period. We also highlight the fact that it is important that Parliament is able to scrutinise any future trade deals properly, whether they are negotiated by the European Union on our behalf because we end up remaining in the customs union—the Committee has not reached a view on that issue, but it is a matter of debate in the House—or they are negotiated by the Government.

[Mr Philip Hollobone (Kettering) (Con)]

I congratulate the right hon. Gentleman on bringing his report to the House and giving an oral statement. I hope that he does the same for all his subsequent reports. Clearly, he and his Committee are going to be very busy, especially from October onwards. What is his response to a scenario whereby either the European Parliament or the British Parliament sought to amend the withdrawal agreement while the other had approved it? What happens in those circumstances?

[Hilary Benn]

I am grateful to the hon. Gentleman for his kind words. We feel pretty busy already. I cannot promise that I will always make a statement on every one of our reports, because that is in the hands of the Backbench Business Committee.

The scenario that the hon. Gentleman describes is a possibility. It is not unknown in negotiations where two parties are discussing an agreement for them to report back to their members—in this case, Members of the European Parliament and Members of the House of Commons—and then return to the table and say, “I’m sorry but it didn’t go down terribly well with the members in this respect. Can we talk about what we are going to do about this?” It is possible that that situation might arise. That is why we thought it important to set out in the report what we think ought to happen. We say that Parliament should be able to express its view—that we in Parliament should be able to offer advice— and the Government should listen to that, but clearly it would be for the Government to go back and negotiate.

This also links to the recommendation about an amendable motion. When the Secretary of State came to give evidence, I asked him, “Will the motion to approve the withdrawal agreement be amendable”, and he indicated that it would be. I think he said, “Show me a motion that can’t be”; I paraphrase. In those circumstances, Parliament might want to say, “The whole thing’s fine”, or it might want to say, “All these bits are okay but we have reservations about this, or we’d like to see that included.” My personal view is that Parliament should be entitled to do that. The view of the Committee is that Parliament should be able to offer advice to the Government and then the Government will have to respond. If the agreement is not approved—or if conditions are put on its approval—in the House, any Government, in any circumstances, on either side of the negotiations, would have to reflect on that and work out what they were going to do.

[Stephen Timms (East Ham) (Lab)]

May I ask my right hon. Friend about the section of the report dealing with the financial settlement, from paragraph 58 onwards? The House and the country have been given the impression that we are going to make a very large payment of up to €40 billion to the European Union on condition that we secure a favourable agreement about our future trading relationship. How likely is it that next March we will find ourselves obligated under the terms of the withdrawal agreement, which will be legally binding, to make the payment, yet at that point have no legal certainty at all about our future trading relationship?

[Hilary Benn]

I am grateful to my right hon. Friend for his question and for his sterling service on the Committee. That is indeed a possibility due to the way that the draft withdrawal agreement is constructed at the moment. The commitment to pay the outstanding moneys that we owe, which the Government have accepted, is part of that agreement and not conditional on what may transpire in the negotiations on the future partnership. There has been some debate on this subject; indeed, we questioned Ministers on it when they appeared before the Committee. We say in the report:

“We note that the Government has not yet secured a clause in the Withdrawal Agreement linking the financial settlement to the satisfactory conclusion of negotiations on the framework for the future relationship. We call on the Government to confirm whether the inclusion of such a clause is one of its negotiating objectives.”

We wait to see what the Government say in response. As things stand at the moment, the commitment has been made to pay the money as part of the withdrawal agreement, and it is not linked to the future partnership and the treaty negotiations on that, which we hope will be concluded by December 2020.

[Dr Sarah Wollaston (Totnes) (Con)]

I thank the Chair and members of the Exiting the EU Committee for today’s statement and their excellent report. The Committee I chair, the Health and Social Care Committee, has been very concerned about what could happen, in the event of no deal, to the future supply of medicines and devices because of the challenges to the supply chain. Will the Chair of the Committee set out in what other areas he is seeing concerns about the lack of contingency planning being published so that we can scrutinise what is happening and prepare for the future?

[Hilary Benn]

Ministers have said to us that work is going on to prepare for the possibility of no deal. The Committee has previously expressed its view that a no deal outcome would be very damaging to the British economy and create a great deal of uncertainty. That is why we say in the report that we do not accept that a rejection of the deal will then automatically lead to us leaving with no deal, because it would be for Parliament, in the end, to decide whether it was prepared to leave the European Union with no deal. That would be a matter for every single one of us as Members.

I think the nearer we get to March 2019, the more there will be concern if the possibility of no deal being agreed becomes greater than it is at present. I still hope and believe that agreement will be reached because, frankly, neither side in this negotiation should contemplate with any equanimity the prospect of leaving with no deal. The consequences would be exceedingly serious, as we learned from the evidence we heard from the Port of Dover when we visited it, in terms of practical things like keeping the lorries flowing, never mind the medicines, never mind aircraft, never mind broadcasting rights, never mind data transfer. There is a very long list of questions on which people know how the system works today and they want to know how it will work once we have left, but they are very worried about what would happen if there were no deal, and my own personal view—I have expressed it in the House before—is that that is not something we should contemplate at all.

[Stephen Kinnock (Aberavon) (Lab)]

I congratulate my right hon. Friend and thank him for his forbearance in what is sometimes a very robust discussion in Committee; he is certainly masterful in seeking consensus.

The question is really around the vote in October and the content of the political declaration on the framework for the future relationship. Does my right hon. Friend agree that there is a real risk of a wishy-washy, vague, motherhood-and-apple-pie political declaration in an attempt to keep the Conservative party together, rather than giving MPs a clear sense of the direction our future relationship would take? What steps does he think the Government should take to assure the House that there will be sufficient detail in that political declaration to make a meaningful vote truly meaningful?

[Hilary Benn]

I thank my hon. Friend for his work on the Committee. I hope he will forgive me if I do not comment on party considerations in making this statement here today, but he raises an important issue about the nature of the political declaration. We heard clearly in evidence that it will not be a treaty or draft treaty, although there was some debate when we heard from Guy Verhofstadt about whether including it as an annexe to the agreement would give it greater force. It will come down to this question: will the House think there is sufficient certainty about the nature of our future relationship on all the things I mentioned a moment ago to the Chair of the Select Committee on Health, the hon. Member for Totnes (Dr Wollaston), in the political declaration or not? If we approve it and there is not that certainty, the House will really be saying, “Well, let’s see what happens.”

There are two parts to this negotiation: the withdrawal agreement, which is the divorce settlement, and which is important, and our future relationship on trade, security, the fight against terrorism, foreign policy and services—80% of the British economy is services—which is the really important bit. Therefore, the more detail and the more certainty the political declaration can offer, and the more the parties to the negotiation can show they are committed to turning that into a treaty, the better it will be for Parliament as it makes its judgment.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I thank the right hon. Gentleman for his report and his very informative statement. He alluded in his comments to having some frustrations about the speed of negotiations, and attributed that not just to this side of the channel but also to the other side. Does he agree that it is time for Brussels to move aside the politics and to start thinking about the economic interests of its citizens, and to move forward in a more constructive fashion with the negotiations?

--- Later in debate ---

[Hilary Benn]

That is not directly covered in the report, but I will give the hon. Gentleman a personal view, since he asks me the question. It is going to take two to reach an agreement, and I have already made the following point publicly as Chair of the Select Committee. The Government have their red lines, and in some respects they have already turned a slightly pinker shade, for example when the Prime Minister very sensibly said, “We want to continue to co-operate on security and recognise that that will involve the remit of the European Court of Justice,” and the same has been said in respect of the agencies. In my view, the EU negotiators should not then fold their arms and say, “That’s all very difficult”; they should say, “Fine, but you’re going to have to contribute financially and accept the rules, and you won’t have a vote although you might be in the room, and you’ll have to accept any judgments made by the ECJ.” Let us consider, for example, the European Aviation Safety Authority: it is patently sensible from everybody’s point of view that we should continue to be part of it, and I think there has been one ECJ judgment in the past three years on a very technical matter.

We hear a lot about cherry-picking, too. We looked carefully in our previous report at all the different deals the EU has negotiated—with Norway, the European economic area, Ukraine, Switzerland, Canada and so on—and it could be said that all of them involve elements of cherry-picking. One person’s cherry-picking is another person’s bespoke agreement. Speaking personally, I hope there is movement on both sides, because it seems to me that that is essential if we are going to get a sensible deal for British business and the British people.

[Patricia Gibson (North Ayrshire and Arran) (SNP)]

I thank the Select Committee Chair for his statement and all the work undertaken by the Committee members. I welcome the conclusion that the Government should also commit to seeking the views of the devolved Parliaments as part of the process of seeking approval for the withdrawal Act and political declaration. Has the Select Committee taken evidence or come to any view as to whether the Joint Ministerial Committee has been an effective consultation forum previously?

[Hilary Benn]

We have taken some evidence previously on that question, and clearly there is currently a difficulty in respect of the withdrawal Act between the UK Government and the Scottish Government about how the powers that will come back will be used and by whom, and I hope very much that that is resolved. One of our report’s recommendations states:

“The Government should set out in detail the processes by which the views of the devolved governments and parliaments will be fed into the negotiations on the UK’s future relationship with the EU and on future trade agreements with non-EU states”,

depending on where we end up in terms of trading arrangements.

The view has been expressed to us in the past that previously there were gaps between meetings of the Committee. It is my understanding that there have been more meetings more recently, but that does not necessarily result in a unanimity of view on what is the right thing to do. My advice, in so far as it is asked for, is “If you’ve got a difference of view, it is a jolly good idea to sit around the table and try and work it out.”

[Mike Gapes (Ilford South) (Lab/Co-op)]

I congratulate my right hon. Friend and his Committee on an excellent report. He mentioned that there are only 21 months after the end of March next year for the so-called implementation and transition period; in fact, the report points out that there will be European Parliament elections and a new Commission and the real time for real negotiation in that period will be about 15 months. Is he confident that the Government are aware of this, and does he expect a response from the Government within two months, as is customary, to this House, so that we can look at these issues in detail before the autumn?

[Hilary Benn]

On my hon. Friend’s last point, the Committee does indeed hope and expect that it will receive a response from the Government in the allotted time. We have produced a number of reports, and I think there might be one report on which we are still awaiting a response, but, in fairness to Ministers, they have got a lot on. I see that the Minister smiles, and I am in my most generous mood today: they have indeed got a lot on. I am sure Ministers understand the dynamics of the change in the EU come next year, with the elections and the new Commission being formed, although to be absolutely fair, when we asked Guy Verhofstadt about this last week, as I recall, he expressed the view that he did not really think that would create a great difficulty, but we have heard different evidence from other people.

What I would say is that whether that causes the time to be truncated or not, 21 months to sort out the whole list of things that we are all aware of, and Ministers are more aware of than anybody else, is not very long bearing in mind that the other bit of the process is ratification at the end of it. To the extent that an agreement reached becomes a mixed agreement, the ratification process—unlike the withdrawal agreement, for which the process is the Council by qualified majority voting, this Parliament, the European Parliament—would involve the Parliaments of all of the member states, including regional Parliaments, and we all recall what the Parliament of Wallonia did for about three weeks in respect of the Canada trade deal. So that adds to the uncertainty and to the pressure to try to get these negotiations concluded as quickly as possible.

[Nick Smith (Blaenau Gwent) (Lab)]

Does my right hon. Friend agree that suggestions of an extension of any transition period are likely to be welcomed by many sectors of our economy? In the past few weeks, businesses have lined up to express their concern about the time available to provide business continuity and to safeguard jobs.

[Hilary Benn]

I suspect that that is the case. Why did the Government eventually seek a transitional period? They did so because we all agreed that falling off the edge of a cliff in March next year without an agreement was not sensible for the economy. Picking up on the point that my hon. Friend the Member for Ilford South (Mike Gapes) raised a moment ago, if we have not been able to conclude all the details of a treaty or treaties on the future partnership during the transitional period, what would be the logic of then falling off a cliff 21 months later? There is none. My own view is that it is increasingly likely that there will have to be a further transition period, because we are running out of time.

Let us take as an example the customs arrangements that the Cabinet is currently discussing. I think it is pretty clear that even if it reached agreement on one or other of them, there might not be time to get all of that implemented before the end of December 2020. The indications that I have seen suggest that that might not be possible. If it is not possible, or if it is not possible to reach an agreement, it clearly makes sense to extend the transition period. For that to happen, however, there has to be a clause in the withdrawal agreement to allow for such an extension. The last thing we want is to end up, in December 2020, with everyone agreeing that it would be sensible to have a bit more time, only for someone to say, “I’m really sorry, but this agreement doesn’t allow for that, so you’re out on your ear with whatever you’re holding at the time.” And that is not in the interests of the United Kingdom, is it?

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

Paragraph 19, and the right hon. Gentleman himself, has referred to the need for procedures to consult the devolved Governments on free trade deals with Europe, and indeed with non-EU countries. He has referred to the current little disagreement between Governments and Parliaments. In view of the importance of this for devolved areas and for premium Scottish products and businesses, does he think that the devolved Governments should have a place at the table when trade deals are being negotiated?

[Hilary Benn]

I grappled with this question when I was Environment Secretary. I would talk to my opposite number, Richard Lochhead, and he would sometimes come to Brussels and we would discuss the matter in question beforehand. However, the position always was, and remains to this day, that it is the United Kingdom as one country that is negotiating. Of course, in doing that, the United Kingdom should take account of the interests and needs of businesses in different sectors and different parts of the country, and of the particular products that the hon. Lady has referred to. As far as the current difficulty is concerned, as I observed when we had a statement from the Secretary of State for Scotland recently, there is agreement on both sides that there are 24 areas on which the two sides need to sit down and talk. I hope that that process can unfold soon and reach agreement, because if agreement can be reached on the 24 areas, there should not be a difference of principle, because this has been done by means of negotiation.