European Union (Withdrawal) Bill

Lord Clarke of Nottingham Excerpts

Tuesday 12th June 2018 Commons Chamber

[Mr Davis]

My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.

The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am rather sorry that my right hon. Friend is so distrustful of judges on what are essentially procedural or constitutional matters, but could he define “appropriate” to me? It is one of those vague words that I suspect means “if the Minister feels that he or she wants to, one way or the other”. A decision could almost certainly not be challenged by judicial review, because the word is so wide and vague that there is no conceivable argument that could be raised to challenge the Minister’s opinion. We cannot take powers in that way meaning that the Government are able to legislate on matters that will be important to some individuals entirely at a Minister’s uncontrolled discretion.

[Mr Davis]

I hear my right hon. and learned Friend—and old friend, because we are still capable of having a dinner for two hours and not talking about Europe throughout it; in fact he paid, and it was lunch.

The simple fact is that we are not just leaving this to a single word. As I said earlier, the House of Lords Constitution Committee looked at the matter, in the context of this Bill and the sanctions Bill, and said that we should require the Minister to give “good reasons”—that was the test—which is what we have proposed in our amendment.

--- Later in debate ---

[Matthew Pennycook]

I am not going to give way at this stage.

The amendments in this group are, at their core, about what we, as hon. and right hon. Members, believe the role of Parliament should be in the Brexit process. They are about ensuring that Parliament plays an active role in shaping our country’s future, rather than accepting that the House of Commons is to be little more than a spectator and a passive observer to one of the most important decisions that has faced our country in generations. They are about ensuring that the withdrawal agreement cannot be ratified unless we approve it and, in the event that we do not approve it, that the UK cannot crash out of the EU by ministerial fiat. They are ultimately about reasserting the primacy of the House of Commons, so that this House, should the situation arise, is able to do what is right for our country.

[Mr Kenneth Clarke]

Thank you for calling me, Mr Speaker. I will try to be as brief as I can. Everybody knows that that is an effort for me, but I really will try to be positively terse where I can, and I am afraid that if I give way at all, it will be very briefly. That is only right, because the programme motion we have just passed, which I voted against, allows just three hours for debate on this whole group. I am well aware that hundreds of Members will find it almost impossible to get in, and therefore if I abuse the privilege you have given me, Mr Speaker, I should cause a great deal of damage to the quality of the debate.

First, let me say that I have never known an issue of this importance to be taken in this way. I remember being in debates on the European Communities Bill back in 1972 and in debates all the way through Maastricht, when there were hours and hours of debate and repeated votes before the approval of this House was obtained. Nobody throughout would have dreamt of arguing that as part of the process, the House of Commons could be excluded and the Government could be given an absolute privilege to proceed. Such a suggestion would have been treated as a complete absurdity.

[Sir William Cash]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will not, I am afraid, because had the suggestion been put to my hon. Friend during the Maastricht debates that if the Government got defeated on a resolution, they could take it over on their own and let Parliament know in due course what was going to happen, I do not think he would have welcomed it. I understand that we are in a different position.

[Sir Edward Leigh]

You’ve got to give way to him now; you’ve mentioned him.

[Mr Clarke]

I thought my hon. Friend and I had debated this quite long enough for everybody already, but I will give way to him.

[Sir William Cash]

Will my right hon. and learned Friend explain whether he believes it is possible, with the meaningful vote, to manage to maintain the Brexit process? Does he not accept that the effect of the meaningful vote is actually to reverse the Brexit process, and furthermore, to use a certain expression, that it is completely failing to understand the nature of the amendments to suggest otherwise?

[Mr Clarke]

I am grateful my hon. Friend—he is a genuine personal friend, and always has been—and he has brought me to the point I was moving on to.

This debate is being dominated, as far as the Brexiteers are concerned, by the argument that the amendment on the meaningful vote—Lords amendment 19, as amended by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve)—is really an attempt to get around the referendum. For the past several months, I have found that I am told on practically every subject, when the details get a little difficult and the argument gets a little odd, “Ah, you’re not accepting the will of the people.” I first faced that when I opposed our withdrawal from Euratom, and I still do not believe that the public voted for that.

For the avoidance of doubt, as I have repeatedly made clear, I was on the losing side in the referendum—much as I regret it—but after the majority on article 50, we are going to leave the European Union. I have not joined the campaigns to have a second referendum, and I hope I do not live to see another referendum on such an important subject in my lifetime. The fact is that the key decision was then taken, but I will not go back over the quality of the debate and the arguments put forward by the leading figures on both sides that then dominated the national media.

Once the decision was taken by this House, on invoking article 50, that we are leaving, hundreds and hundreds of detailed questions arose about what new arrangements we are going to have for our relationships with the European Union on a huge range of subjects, some of which we have scarcely looked at at the moment, and for our relationships with the rest of the world, because all our trade agreements are based on the European Union as that is how we have entered into them for the past several decades.

The idea that the yes/no vote—leave or remain—on referendum day actually decided each and every issue that now arises, if I may say so to people for whom I actually have respect, is, frankly, intellectually lazy. It is a refusal to engage with what we are actually talking about. I realise that many of the public are exasperated. The prevailing mood among the public is, “What are they all doing, and why don’t they get it over with?” I am sorry about that, but the fact is that leaving poses a lot of questions. I do not think that most members of the public feel that their vote decided the issues we are talking about today in relation to parliamentary scrutiny and control. I am only guessing, but if we had said, “Of course, if you vote leave, you are giving the Government the absolute right to do what they wish in the negotiations and come to whatever agreements they want,” I do not think it would have been easy for my right hon. and hon. Friends to get a majority for such a proposition.

Let me get on to what we are really talking about, because I have already taken longer than I wished. As I have said, any suggestion that Parliament should hand over absolute discretion to any Government to handle such things would have been treated with absolute outrage, not the usual cheers and counter-cheers, expressed to any Minister who dared to do so. It is said—the hon. Member for Bassetlaw (John Mann) is persuaded by this, but I do not agree with him—that the next argument we will face is, “Well, what you’re saying is that the House of Commons should take over the negotiations.” Of course we are not. I quite agree that that is a ridiculous proposition.

The Lords amendment was proposed by my right hon. and learned Friend Lord Hailsham. As we are all aware, he and others gave a lot of thought to putting together a parliamentary process that would be practicable and workable; the drafting might be improved, but the Government could have done that if their lawyers thought it was worth while. My right hon and learned Friend had in mind that a further resolution would be required, but this second resolution, after the proposed settlement had been rejected, would of course be moved by a Minister. The amendment tabled by my right hon. and learned Friend the Member for Beaconsfield makes that even clearer. The idea that we would have a mass meeting of 650 people to decide what resolution to put forward is not postulated in the Lords amendment, and nobody is suggesting that.

[Mr Mark Harper (Forest of Dean) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

No, I have taken too long already. I apologise to my right hon. Friend.

The Government would of course be in a bit of a dilemma—I imagine we would all be even more excited than we have been for the past few days—but the fact is that they would have to go away and work out what resolution to bring forward that would carry the House of Commons. I assume that would be a continuation of the negotiations, but the House would demand that its approval was sought for the next turn in the negotiations, and the directions in which they would go, to satisfy its objections. I regard that as a perfectly serious proposition.

The public debate on the whole question of Brexit has largely been ridiculous—not just in the Daily Express, but in many other areas—but in this place we actually need to take seriously what we are doing not only for the future prospects of generations of our citizens, but for the constitutional position of this House. We have already given up all kinds of things that I have always taken for granted. I have never known such a weak Parliament for allowing things to get through, ending with the latest timetable resolution, but to take the Government’s amendment would be the ultimate in doing so.

With this amendment, the Government have had to accept the decision of the House when we successfully defeated them before Christmas. They have had to come back and set out a better process of parliamentary approval before ratification. The big question then is: what if the Government reject it and there is no deal? In the House of Lords, the Minister was quite clear in resisting the amendment: “Oh, this meaningful vote is going to be deal or no deal—take it or leave it.”

[Andrew Bridgen]

Yes.

[Mr Clarke]

“Yes,” says my hon. Friend behind me. That is what he wants.

[Andrew Bridgen]

Will my right hon. and learned Friend give way?

[Mr Clarke]

No, I will not give way.

It would be a yes/no vote. Members may not like the deal, but if they vote against it, all they will get is no deal. The result is that, whatever deal they come forward with, only a handful of my right hon. and hon. Friends would vote against it, because they do not want any deal at all, but they are an absolutely tiny minority in this House of Commons.

What do the Government say in their amendment that the House will be faced with? The amendment says that, within 28 days, a written statement will be produced. It will be one of the piles of written statements we have every day, and—dare I suggest it?—not every Member of Parliament usually bothers to go through those piles of written statements every day. [Interruption.] Well, obviously I am exceptionally negligent in not doing so. What is the written statement going to say? It could say, “Well, in that case, as there’s no deal, we’re leaving.” or, “Well, we’re going to do this, and that’s it—that’s the end of the parliamentary process.” It might as well say, “O House of Commons, get lost!” This is a wholly inadequate response to the votes we will have had in Parliament.

[Several hon. Members rose—]

[Mr Clarke]

No, I want to make two more points. I will now be very brief, and I will not expound on all the points I would have expounded on.

The argument that we are undermining the Prime Minister’s position in the negotiations is equally ridiculous. It is based on the proposition that, out on the continent, people do not know that there are divisions in the Cabinet or what the situation is in the House of Commons, and were a whisper to get out about some slightly unusual votes in the House of Commons, this would undermine the position of my right hon. Friend the Secretary of State and the Prime Minister and make that position much weaker.

I suspect that the feeling among those on the continent at the moment is that they are utterly bewildered by the Anglo-Saxons and that they have no idea what we think we are doing. They are not hostile to this country; they are waiting for us to make up our minds about what we wish to negotiate before the negotiations start. All the other Governments have to get the approval of 27 national Parliaments. What they are watching is an attempt by the real zealots in this House to stop this Parliament playing any part in the process, which is totally unacceptable.

The time has come to say that all Government policies on any subject, great or small, depend on the ability to command a majority in the House of Commons on the key principles and the direction in which the country is going. I will certainly vote on that basis and I hope that the Government regret the rather intolerant response and all the pressure they have been applying on my right hon. and learned Friends in trying to resist such an obvious proposition.

[Peter Grant (Glenrothes) (SNP)]

Thank you for calling me, Mr Speaker. It is always a daunting prospect to follow the right hon. and learned Member for Rushcliffe (Mr Clarke), although I am grateful to him on this occasion for warming up the audience a wee bit.

I do not often go along with the tradition of spending the first part of a speech being enormously grateful for getting the chance to speak in this place. After all, speaking here on behalf of our constituents is the absolute right of all Members. Today, however, it is appropriate for me to acknowledge that I am one of the privileged few because I will get to speak today and, who knows, perhaps even tomorrow, whereas the vast majority of elected Members in this place will not have a chance to speak at all.

If we all got an equal say over the next couple of days, every MP would speak for about 10 seconds—and no, I am not going to call time on myself just yet. Each of the amendments, many of them vital for the future, would be debated for about three minutes. In reality, most MPs will not be called and we will be asked to vote on amendments that have never been before this House and that will literally not even be mentioned by name, rank or serial number in the debate because there will not be time. Anybody who believes that that is an example of participative democracy at its best needs to get out of here and spend some time reconnecting with the real world.

The programme motion that the Government got through today is an absolute travesty of democracy, following days and days on which the business collapsed and the Government were inventing things to talk about because they did not have the political courage to bring this Bill or umpteen other Brexit-related Bills before the House. The idea that we can give proper consideration to 160 or 170 amendments in effectively nine or 10 hours of debate is utterly laughable. It is an indication of how far the hard Brexiteer propagandists and sloganisers have parted company from any kind of rational logic that they and, indeed, many in the Government denounced the Lords for approving 15 amendments that the Government did not like, while welcoming the fact that those self-same Lords approved 166 amendments that the Government asked them to approve. One hundred and sixty-six amendments were requested by the Government, and 15 by the rest of the world, and it is the rest of the world who are the villains and the enemies of democracy in this.

It was inevitable but deeply disturbing to see how the battle lines have been drawn on the front pages of some so-called newspapers, and I know that there was a point of order on this exact point earlier today. Their lordships are the “traitors in ermine”, the “enemies of the people”, as, indeed, are judges in the Supreme Court, for daring to do the job that they are there to do. I am not a fan of the unelected House of Lords, but they are there for a purpose and, whether we agree or disagree with the way in which they have discharged their purpose, the abuse that has been heaped on them in the past few weeks is utterly uncalled for and has no place in any kind of civilised debate.

--- Later in debate ---

I go back to my argument about what would happen if the House of Lords had its way and the Government lost this afternoon. Opposition Members are, of course, entitled to cause confusion in the Government ranks. I accept that they may have their own motives, but I appeal to my hon. Friends: what would be the result to our Government if we lost this vote today? It would be a catastrophic blow. I return to the question that I put to my right hon. Friend the Secretary of State earlier: what would the European Commission think of that? My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) had a bit of fun about this. He said, “Oh, of course the European Commission knows that there are some arguments and debates.” It would be an open invitation to the European Commission to pave the way for this catastrophic situation in which there is no deal, because it knows that if there is no deal—if there was going to be a disorderly exit—the House of Commons could unpick the whole process, block Brexit and, as the hon. Member for Stoke-on-Trent Central (Gareth Snell) said, reopen the whole process.

[Mr Kenneth Clarke]

These arguments were put—almost as forcefully as my hon. Friend is putting them—when we had our debates before Christmas in Committee. This House then passed an amendment on a meaningful vote, defeating the Government. People had foreseen that that would undermine the Prime Minister, cause an election and represent a crisis, but the next morning, apart from the fact that there was now to be a meaningful vote, nothing stirred. The position of the Prime Minister was not weakened and negotiations have not been hindered. My hon. Friend is putting his arguments with his usual great eloquence, but, with great respect, they avoid what we are really talking about, which is the important process of parliamentary accountability.

[Sir Edward Leigh]

I am afraid that my right hon. and learned Friend was not listening to his own speech. Was I not listening—was I not two or three feet away from him—when he said that the amendment that we passed earlier was not going to make much difference to the whole process? It was like giving a statement, was it not? What we are talking about is completely different. This really is the ultimate wrecking amendment, and it is not the wrecking of parliamentary sovereignty; it is the wrecking of the will of the people and democracy. There are so many compromises that we all have to make. There are so many things that I do not understand about this negotiating process, and about how we have got stuck on the hook of Ireland, the backstop, “max fac” and all these other things, but the essential thing is this: the people want us to leave the EU. They want to regain control of their borders and they want us to be out of the European Court of Justice. All this Bill does—it is not the EU negotiating Bill—is simply to implement the will of the people. Parliament, do not stand against the people! Implement their will.

--- Later in debate ---

[Mr Grieve]

I fear not. I think the reality is that if we accept the Lords amendment, that will be the end of the matter. That is the problem that we face in this House.

[Mr Kenneth Clarke]

Both my right hon. and learned Friend and I accept without hesitation the good will of our hon. and learned Friend the Solicitor General, who is doing his best to resolve the slightly odd situation that we are all in. I think that the majority of Ministers—although I do not know about my hon. and learned Friend—would give my right hon. and learned Friend the undertaking for which he is asking now, and that the majority of our party would be quite happy with an arrangement of the sort proposed in his amendment. However, all we can have is what we had in Committee—offers of good faith, discussions and earnest attempts—because our proposals will be vetoed by the hard-line Brexiteers in the Government.

[Mr Grieve]

I am grateful to my right hon. and learned Friend. I think that we will hear more about that as the debate unfolds.