The Government's Plan for Brexit

Oliver Letwin Excerpts

Wednesday 7th December 2016 Commons Chamber

[Edward Miliband]

My hon. Friend puts it very well.

What about the plan on immigration, including for citizens of this country who want to go and work or live abroad in the future? What is the vision? I think the Secretary of State for Exiting the European Union, who is no longer in his place, was nodding and saying that they would produce a plan on our approach to crime and terrorism, foreign policy, climate and energy policy, in respect of which Governments of both parties have taken a leadership role in Europe. What is the future for that? We do not know at the moment, so it must be in the plan.

Our motion is not a request for every dot and comma of the negotiations, to use the Prime Minister’s words, to be included. We are talking about basic and fundamental questions about the Government’s vision of our economy and place in the world, post-Brexit.

As my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) said, the plan must be produced in January—soon enough for Parliament and, crucially, the British people to debate it properly. I had some time on my hands, so I looked up the consultations on which the Government have embarked since the 2015 general election. There were 1,200 in all, and they include everything from consultation on the code for small sea-going passenger ships to one on the regulation of traffic signs. The Government consult a lot. Are we seriously saying that the issue on which they are not going to consult the British people is the post-Brexit arrangements for our country? I would point out that this is less of a niche issue than the regulation of traffic signs—important though that issue is.

Here is the thing. The Government said that they want to bring the country with them. That is really important, and those words were echoed by the leader of the Scottish Conservative party, who said that we have got to listen to the voices of the 48%. But a Government cannot take the country with them if they do not tell the country where they are seeking to go before the negotiations begin.

I have no greater authority to cite on this than the current Prime Minister. In 2007, she wrote a very interesting pamphlet with somebody called Nicholas Timothy, who I believe is her chief of staff. It is called “Restoring Parliamentary Authority: EU Laws and British Scrutiny.” I am told that it has been taken off the relevant website, but fortunately the House of Commons Library has a copy. It says:

“Our feeble system of scrutiny undermines Parliament’s ability to check or restrain the Government’s action in Europe…We therefore need a system that gives Parliament real powers over ministers, enough time to scrutinise, and the transparency to restore public trust in the process.”

I could not have put it better myself.

[Sir Oliver Letwin (West Dorset) (Con)]

rose—

[Edward Miliband]

I give way to the right hon. Gentleman, who might well have had a hand in the pamphlet or written many like it.

[Sir Oliver Letwin]

I am grateful. To clarify, for the benefit of the House, is the right hon. Gentleman arguing whether, after the scrutiny, Parliament or Government get to decide on how to proceed with the negotiations?

[Edward Miliband]

I believe, as the right hon. and learned Member for Rushcliffe said, that of course there should be a parliamentary vote—a mandate for the Government. That takes me precisely to further crucial points. The Government think that they will be weaker if they bring a plan to the House and get our support. I think the Government will be stronger in the negotiations, because they will be able to go to our partners in Europe and say that the plan is not just the Government’s, but one endorsed by the British Parliament.

The Government’s excuse relates to secrecy, and I think this needs to be dealt with. I do not think this argument stands up even to the most basic scrutiny. Let us think about how things will unfold. Once the formal negotiations begin, the EU negotiator will obviously have to confer with the 27 other Governments. Our Government’s intention and detailed proposals will remain secret for a few days if they are really lucky, but probably not even for a few days. The Government’s position will inevitably leak. The question before us is not whether the Government’s intentions are kept secret—which is apparently what the Prime Minister wants—but whether those in this Parliament and this country are the last people to know what the Government’s intentions actually are. It seems to me that there is absolutely no chance of the Government’s uniting the country, and taking the country with them, if they adopt that approach.

There is also the question whether the referendum decides the form that Brexit will take. I do not believe that it does, as many other Members have said, but it is not just me who takes that view. Daniel Hannan, one of the leading Leave campaigners, has said:

“Some Leavers claim the result as a mandate for whatever arrangement they happened to want.”

That is the truth about this, and there is no getting away from it. There are many different forms of Brexit, as we see in the numerous other countries that are outside the European Union.

I want to end where I began, with a point about the spirit of the debate. My right hon. Friend the Member for Leeds Central quoted some comments that had been made by Downing Street spokespersons on Monday, but they said something else which I find incredibly troubling. They said that those of us who are asking for transparency were not “backing the UK team”. In other words, we are not being patriotic. By my reckoning, that puts Sir John Major, Ruth Davidson and a number of Conservative Members of Parliament in the unpatriotic category. I am used to being called unpatriotic, and my dad has been called unpatriotic as well, but it really is something when Conservative Members are called unpatriotic. We know that things have become desperate for the Government when that starts happening.

We are not seeking proper scrutiny of the plans for Brexit because of our lack of patriotism; we are doing it out of patriotism, because we believe in the unity of the country. We believe that the country must be brought together. We believe that the cohesion of the country must be protected. This is the most complex and treacherous situation that our country has faced for a generation. Candour and transparency are not qualities that the Government should fear, but qualities that they should embrace, because they are the only route to uniting our nation, and we all have a responsibility to seek to unify the country.

I urge the Government not to choose a path of division, excluding the 48%, refusing to share their intentions and vilifying their opponents, including those on their own side. That is not behaviour equal to the moment: it is not behaviour that our country and the world need. We all have a responsibility to rise to the moment, and that is what we must do in the months and years ahead.

--- Later in debate ---

[Sir Oliver Letwin (West Dorset) (Con)]

The right hon. Member for Wolverhampton South East (Mr McFadden) has made out that the essence of today’s debate is about whether the Government publish a plan and how it is scrutinised, and the shadow Secretary of State echoed that thought. I do not believe that is the debate we are having today; as was made clear in the response to me from the right hon. Member for Doncaster North (Edward Miliband), the former Leader of the Opposition, the debate we are actually having is congruent with the discussion going on in the Supreme Court, over the road. It is about a great constitutional issue: the old Leninist question of “who, whom?” The question is: should the Government of the UK, following a referendum, be able to conduct negotiations in the style and manner and with the intent that they decide, on behalf of the people of the UK, or should Parliament seek to constrain the negotiation, ultimately by passing a law constraining the activities of the Government in that negotiation? That is the issue we are facing.

I wish briefly to argue, in the time allotted, that if we think about it carefully, it is clear that it is impossible to conduct that negotiation successfully on the basis of a legal mandate given by Parliament. Why? It is because once a law is passed that determines negotiation, the negotiation as a whole, and in every particular and at every moment, is justiciable. We will end up with the Supreme Court and lower courts being called upon to decide, from moment to moment, in judicial review after judicial review, whether the Government have sufficiently transparently made clear every detail of the negotiation to satisfy the Court that the mandate of Parliament in the law is being observed; and whether they have fulfilled the terms of the mandate, once everything is transparent. Any Member of this House who believes this country will have an advantage in the outcome from such a process is severely misguided.

I voted to remain, and I still believe that would have been the right decision for this country. I believe we would be better off inside the customs union than out and better off inside the single market than out; I wanted to be free of the rest of the EU’s jurisprudence, but not of those things. I think we might have achieved that, but that world has passed; the referendum has occurred—we are leaving. If we are leaving, we have to negotiate an exit. The horror and the tragedy of the discussion we are having now is that, if it does lead to Parliament imposing those kinds of constraints on the Government, it will not be possible for the Government to do a trade deal with the remainder of the EU when we have left—by that, I mean left the single market and left the customs union, as we are bound to do by the logic of the situation—and it will not be possible for the Government to negotiate a trade deal to the advantage of our country because it will not necessarily be within the mandate, and that could leave us in the worst of all possible positions. So I urge Opposition Members to remove the cloak, cease to pretend that this is about transparency and plans, as we know perfectly well where the Government are going, admit that this is a constitutional argument and give up the attempt to control the negotiations line by line from Parliament.

[Helen Goodman]

When the right hon. Gentleman looks at the way the other European countries conduct their negotiations within the EU at the moment, he will surely acknowledge that, for example, the Chancellor of Germany goes to her Parliament and receives a negotiating mandate, and then goes to Brussels. It is that kind of process that we on the Labour Benches are looking for.

[Sir Oliver Letwin]

The hon. Lady is an old friend of mine, but she is totally misguided if she thinks that this is an analogous situation. This is the first time in history that a country has sought to remove itself from the EU. We are engaged in the most complicated game of multidimensional chess that any country has ever engaged in. To imagine that that can receive a legally binding negotiating mandate from Parliament, justiciable by the courts, is pure fantasy.

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

Why is it, then, that the European Parliament can be involved in this process, but this sovereign Parliament, because of the problems that the Government have created for themselves, cannot have any say? That is a democratic outrage.

[Sir Oliver Letwin]

The reason is that the European Parliament is one of the counterparties to the negotiation. The counterparty in our case is the Government of the United Kingdom. We have had a referendum. The Government have to be able to carry through the effect of that referendum, and the plain choice we face is whether or not to constrain the Government. My argument is that, if we constrain the Government, we will end up with a worse result from the point of view of people such as me who were part of the 48%.

[Edward Miliband]

In November 1991, John Major came to the House to seek approval for his negotiating mandate—his plan, we might call it—for the Maastricht negotiations. I do not understand how the right hon. Gentleman can say that this is a terrible breach of our practices when John Major did precisely the same thing.

[Sir Oliver Letwin]

He did. The outcome was catastrophic. I wrote 100 articles inveighing against the Maastricht treaty. Had we never signed up to the Maastricht treaty, we would not now be in this position. The right hon. Gentleman is not citing a precedent that augurs well for the negotiations that are to come.

[David T. C. Davies (Monmouth) (Con)]

During those negotiations, did not John Major say,

“don’t bind my hands when I am negotiating”

with the European Union?

[Sir Oliver Letwin]

He did. He did not succeed in having his hands not bound, and I repeat that the result was a catastrophe.

[Mr Duncan Smith]

The Maastricht treaty and internal negotiations on being in the EU are wholly different from leaving the EU. The strategy for those was about remaining in the EU—all the rest was detail for debate. Here we are debating something strategically quite different: we are departing from the European Union, including the European Court of Justice and various other elements. Too much detail on that will delay the whole process and make it impossible to reach the agreement that my right hon. Friend is talking about.

[Sir Oliver Letwin]

I happen to agree with my right hon. Friend, but my point goes beyond that. It was never suggested, even during the Maastricht debates, that there should be a justiciable mandate. It has never been the case in the course of our island’s history that the prerogative power of making treaties was constrained by a justiciable mandate, still less in the case of a negotiation of this complexity, as my right hon. Friend has said.

[Anna Soubry]

I pay tribute to my right hon. Friend, as ever, for his careful and thoughtful remarks. He says that we are out of the customs union and that we will not be part of it, but people such as me and my constituents are asking whether that is right. Is not it right that we in this place should have a debate to determine whether that is the case?

--- Later in debate ---

[Sir Oliver Letwin]

My answer is no. It is not right that we in this place should decide those things, because ultimately they can be decided only as part of the negotiation. As a matter of fact, I think that the Government will be compelled by the logic of the situation to take us out of the customs union, but whether or not they do that has to be left in the hands of Ministers to negotiate as part of the complex of negotiations.

--- Later in debate ---

[Mr Dominic Grieve (Beaconsfield) (Con)]

As the Member of Parliament for a constituency that voted narrowly to remain, I have felt ever since the summer that my task is to help my colleagues in the Government to achieve Brexit in a manner that is satisfactory and will lead to the best possible outcome for everyone in the country, and today that is still exactly what I want to do. The difficulty, as I see it, is that what we have heard over the last two months in particular—the vitriolic abuse, the polemical argument without any substance, and the ignorance of some of the basic ABC of our constitution—has reached a point at which I sit in the Chamber and listen to utterances that border on the completely paranoid. The nadir, for me, was to sit one evening and hear a Minister of the Crown—not one of those who are on the Front Bench today—say that one of the Queen’s subjects who was seeking to assert her legal rights in the Queen’s courts, and who was, I might add, subjected to death threats as a result, was doing something, or had achieved something, that was unacceptable. If we continue like this, we are on the road to a very bad place.

In my opinion, while my duty as a Member of Parliament is to seek to uphold Brexit and help the Government to achieve it, that does not mean that I must suspend all judgment. On the contrary, we have a clear responsibility to scrutinise legislation, to ask awkward questions, to express our views and, if necessary, to intervene in the process if we think it is going off the rails to such an extent that it is no longer in the national interest. That is why I felt frustrated by the Government’s apparent refusal to come up with a coherent plan.

When article 50 is triggered, we shall be embarking on a process which, in reality, the Government themselves will have great difficulty in controlling. I certainly do not take the view that it is the duty of the House to micromanage the Government, and it has certainly never occurred to me that we should lay down prescriptive rules for what the Government should be trying to achieve, along the lines feared, I think, by my right hon. Friend the Member for West Dorset (Sir Oliver Letwin). I do not think that that is realistic. However, I do think we are entitled to know what the Government are intending to achieve, in broad terms, so that we can debate it and influence it. Some Members may then have to accept that they are in a small minority in respect of some of the legitimate issues that we can debate within the parameters of Brexit itself, and then help to sustain the Government as they go ahead with their work. The fact that the Government have that mandate and have the approval of the House, will, in my view, help them immeasurably in their negotiations.

[Sir Oliver Letwin]

My right hon. and learned Friend is making a powerful speech. Does he agree that if this House and the other place sought to amend the triggering legislation, that would have the effect of making the mandate justiciable?

[Mr Grieve]

It depends on whether we were seeking to limit the mandate in carrying out amendments. As I have not seen what the Government are proposing by way of primary legislation, I have no idea to what extent it might or might not be amendable, but it certainly would not have crossed my mind that one of the sorts of amendments I should produce would involve creating justiciable targets. I think my right hon. Friend knows me well enough from my time as a Law Officer to know that my views about declaratory legislation and targets are probably fairly unprintable—and certainly unutterable in this Chamber—and I do not recommend it to anybody.

On the question of where we are going after that and considering the issues around Brexit, I simply point out that some of the things said, even today by Government Members who I respect, seem to me to be rather fanciful. We have heard a lot about the sovereignty issue requiring us to withdraw from the European Court of Justice. I have to gently point out that if we are going to stay within the mechanisms of justice and security, which the Secretary of State said he believed was in the national interest, although our withdrawal from the EU will mean we will no longer be subject to the direct effect of the ECJ, decisions of the ECJ on interpreting the treaty will continue potentially to have force on us in this country. That is not surprising because we are signed up to over 800 international treaties which have arbitral mechanisms for resolving disputes.

So unless we start getting out of this fantasy element about Europe as a pariah entity, we are not going to start getting down to a realistic assessment of what it is in our national interest to remain adherent to and what it is in our national interest to withdraw from, even though we will be outside the EU and therefore not subject, for example, to direct effect at all.