Leaving the EU: Customs

David Lidington Excerpts

Wednesday 16th May 2018 Commons Chamber

[The Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office (Mr David Lidington)]

I felt that the hon. Member for Sheffield Central (Paul Blomfield), while setting out as best he could the Opposition’s approach to various aspects of European policy, rather neglected to address the key significance of the motion that the Opposition have tabled, which is about the requirement for the public disclosure of current Cabinet Committee papers and which raises important matters of constitutional principle.

The House should not mistake me: I believe passionately in the accountability of Ministers to Parliament. No Minister who possesses a grain of sense approaches questions in the Chamber, let alone a Select Committee evidence session, without a strong sense of trepidation. I still remember what I learned, many years ago in my first Parliament, from watching that magnificent parliamentarian the late Gwyneth Dunwoody using questions and interventions during Committee sessions to spear Ministers who had not bothered to master their brief before appearing in front of her. So I believe in Parliament, but I also believe strongly in Cabinet government, and in the proper constitutional relationship between Government and Parliament. Of course, as Ministers we have a duty to keep Parliament informed about Government policy, but effective Cabinet government also relies upon certain principles.

[Several hon. Members rose—]

[Mr Lidington]

I will give way to the hon. Member for Ilford North (Wes Streeting) and then to my right hon. Friend the Member for Wokingham (John Redwood), and then I will make progress.

[Wes Streeting (Ilford North) (Lab)]

If the right hon. Gentleman is such a believer in Cabinet collective responsibility, what does he make of the conduct of the Foreign Secretary, who continually and consistently undermines the Prime Minister and her position? What does he think will do more damage to our negotiating position: publishing some documents or the conduct of an incompetent Foreign Secretary?

[Mr Lidington]

I will explain later why I believe the implications of the Opposition motion would be extremely damaging for the quality of Government decisions under Governments of any party.

[John Redwood (Wokingham) (Con)]

I fully support the position the Minister is taking. Does he recall that when Labour Governments were giving away powers of self-government right, left and centre at Nice, Amsterdam and Lisbon, they never shared their reasons or the negotiations they had beforehand, even though the issues were deeply contentious among Conservative Members and led directly to the vote to leave the European Union?

[Mr Lidington]

Wishes are always expressed by Members, usually those in the Opposition parties at any given time, for Governments to divulge more about internal discussions between Ministers, but I think the right constitutional principle is that the roles of both the Executive and Parliament need to be respected.

Three key principles are at issue in this debate. First, there is the need for confidential and frank discussion between Ministers in Cabinet and Cabinet Committees, and after eight years in Government one general truth that I have learned is that a policy proposal almost always benefits from discussion among colleagues, who bring different perspectives and interests to bear.

[Several hon. Members rose—]

[Mr Lidington]

I give way to my hon. Friend the Member for Dover (Charlie Elphicke), and then I really must make some progress.

[Charlie Elphicke (Dover) (Ind)]

My right hon. Friend is making a powerful argument, but beyond the doctrine of collective responsibility and making sure that one can have conversations in government, in what world does it make sense that we should disclose our own Government papers—our own Government secrets—to the other side in a negotiation?

[Mr Lidington]

I will want to say a bit more on that point in a few minutes, but first I want to finish what I have to say about collective responsibility.

Discussions between Ministers need to be frank. That was very well set out by a former very senior Labour Secretary of State, Jack Straw, in a statement that was quoted with approval by the Chilcot committee in its report. Mr Straw said in 2009, in explaining a Cabinet decision to veto the release of minutes of one of its meetings, that dialogue in Cabinet and Cabinet Committee

“must be fearless. Ministers must have the confidence to challenge each other in private. They must ensure that decisions have been properly thought through, sounding out all possibilities before committing themselves to a course of action…They must not be deflected from expressing dissent by the fear that they may be held personally to account for views that are later cast aside.”

Those were principles that previous Labour Governments upheld in fulfilling the responsibilities of government, and it is a measure of how far today’s Labour leadership has fallen that it should be abandoning those principles today. We cannot have that kind of honest, open discussion in Cabinet or Cabinet Committee if people know that at any time their views could be made public by means of a resolution of the House.

The second principle—

[Several hon. Members rose—]

[Mr Lidington]

I am not giving way at the moment.

The second principle is that officials must be able to give frank advice to Ministers in confidence. That includes memorandums and other papers provided to Cabinet Committees by some of the most senior officials in the civil service. There are Labour Members present who have themselves served in government; they know that those in the professional civil service used every ounce of their professional skill to help them, as Labour Ministers, deliver the objectives of the elected Governments in which they served. I have to ask: what would those Members say to those officials about a motion that might result in the making public of the advice of professional civil servants—people who of course can never answer back themselves—which they had thought was being given to Ministers in confidence?

[Stephen Timms (East Ham) (Lab)]

Does the Minister accept, though, that his argument is fatally undermined by the fact that members of the Cabinet are discussing these matters in public, in the newspapers?

[Mr Lidington]

I am deeply old-fashioned in my views, and I believe it is an enormous privilege to serve in a Cabinet. I also believe that discussions should be frank and unconstrained within the Cabinet, and that Cabinet Ministers should agree on a collective Government policy and be prepared to defend that policy in public afterwards.

[Sir Patrick McLoughlin]

Does my right hon. Friend agree that if such a motion were to be passed, less would be said in Cabinet papers and they would no longer contain the same candour? That is something that we should try to get away from. We had quite a bit of it between 1997 and 2010, when decisions were not taken through collective Cabinet responsibility.

[Mr Lidington]

My right hon. Friend speaks from experience, and he is completely accurate in what he says.

The third principle was mentioned by my hon. Friend the Member for Dover when he talked about international relations. All Governments have to negotiate with other sovereign Governments and with international organisations, and it is a cardinal principle of our system of government that Ministers and officials need to be able to prepare the British negotiating position in private. Indeed, as recently as December 2016, that was also the view of the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), who said:

“I fully accept that the Government will enter into confidential negotiations…I do…accept that there is a level of detail and of confidential issues and tactics that should not be disclosed, and I have never said otherwise.”—[Official Report, 7 December 2016; Vol. 618, c. 223.]

It is a source of sadness to me that he appears to have departed from that position in lending his name to the motion on the Order Paper today. I would be happy to take an intervention from him if he wishes to explain to the House why he has abandoned the view that he championed two years ago.

[Keir Starmer (Holborn and St Pancras) (Lab)]

The position I set out was in relation to a motion with pretty much the same terms as this. It was accepted that there was a degree of confidentiality. The argument that is being made now is the very argument that was made then about not disclosing papers that are all in the public domain now.

--- Later in debate ---

[Mr Lidington]

I think the right hon. and learned Gentleman was indulging in a bit of medieval scholasticism there. That was not persuasive. I do not know whether he is now fearful of the Trots in his constituency who are working to deselect him. I do not know what has caused him to abandon the principles that he once stood by. The principles that he stood by in 2016 are the ones that Labour Governments of the past have followed, and I just wish that the Labour party would live up to those principles today.

[Alex Chalk (Cheltenham) (Con)]

On that point, is there not an issue of consistency involved? Under the Freedom of Information Act 2000, which was passed by a Labour Government, there is a deliberate and necessary exemption for confidential information. It would create complete confusion and inconsistency if that principle were to be breached now.

[Mr Lidington]

My hon. Friend is right. The Freedom of Information Act 2000—brought in, let us not forget, by a Labour Government—specifically provides exceptions from the freedom of information rules for Cabinet and Cabinet Committee papers, for advice from officials to Ministers and for information that might harm our diplomatic relationships and negotiations. The wording of the ministerial code expresses the balance between the different duties of Government of accountability to Parliament and of confidentiality in developing Government policy. That is why the code explicitly provides that Ministers should be as open as possible with Parliament and the public, notes that we should refuse to provide information only when disclosure would not be in the public interest, and says that that judgment should be made in accordance with the relevant statutes and the Freedom of Information Act 2000—so including the exceptions I mentioned.

[Several hon. Members rose—]

[Mr Lidington]

I have already given way quite a few times, and I am conscious of the large number of right hon. and hon. Members on both sides of the House who have expressed a wish to participate in the debate.

Turning to the point made by my right hon. Friend the Member for Derbyshire Dales (Sir Patrick McLoughlin), the candour of everybody involved, whether Ministers or officials, would be affected if they thought that the content of their discussions would be disclosed prematurely. Frankly, if details of discussions were routinely made public—

[Ruth George (High Peak) (Lab)]

rose—

[Anna McMorrin (Cardiff North) (Lab)]

rose—

[Mr Lidington]

No, I am not giving way at the moment.

If such details were made public, Ministers would feel inhibited from being frank and candid with one another. As a result, the quality of the debate that underlies collective decision making would decline significantly. That is not in the interests of any Government of any political party, and it is not in the interests of our constitutional democracy. Such discussions also need to be underpinned by full and frank advice on policy options and their implications. No Government of the past have tried to operate in an environment where papers can be finalised and distributed to members of a Cabinet Committee one week and then made public the next. It is simply not possible to do so and not responsible to pursue that as an objective.

Like my right hon. Friend the Member for Derbyshire Dales, I invite the House to consider the situation were we to accept the Opposition motion and adopt the practices that the motion embodies. If the motion were carried and the situation that the hon. Member for Sheffield Central advocated became the standard practice governing relations between the Executive and Parliament, we would soon see a deterioration in the quality of policy making within Government, and not greater but significantly less transparency. Indeed, that point was made by Mr Jack Straw, a former Labour Home Secretary, Lord Chancellor and Justice Secretary, Leader of the House and Foreign Secretary, when he said about regimes that did not have the kind of exceptions to disclosure that are in the Freedom of Information Act:

“The paradox of their situation is that, far from that leading to an increase in the accountability of Ministers and decision makers, it has reduced accountability because it has cut the audit trail. Officials and Ministers have gone in for Post-it notes and oral decisions which should have been properly recorded, or for devices for ordaining all sorts of documents which have nothing to do with the Cabinet or Cabinet Committees as Cabinet documents.”—[Official Report, 24 May 1999; Vol. 332, c. 31.]

It was precisely those practices of avoiding the formality of Cabinet and Cabinet Committee agendas, papers and minutes that were severely criticised by both the Butler commission in 2004 and the Chilcot inquiry in 2016. I regret the fact that the Opposition’s motion appears to be moving towards backing a situation in which all those flaws identified by Chilcot and Butler would be reproduced in the future, and I hope that we do not go in that direction.

The justification that we have heard for the motion is that there are special circumstances, but I simply reject the idea that the Government have been insufficiently transparent on the issues in question. On the conduct of the negotiations, the Prime Minister has made important speeches at every stage to set out our approach. We published two White Papers and a series of papers last summer and autumn to set out further details. In December, the Government and the European Commission published a joint report to set out the progress made in the negotiations. The text of the draft withdrawal agreement is in the public domain. We announced only yesterday that we shall publish a new White Paper next month on our proposed future relationship with the European Union. There are six Brexit-related Bills before Parliament, all of which, as usual, are accompanied by impact assessments.

Select Committees have been able to scrutinise our plans for exit, as the more than 100 Select Committee inquiries into such matters testify, and the Government have engaged with all those inquiries. We have provided written evidence, and Ministers and officials have appeared for questioning. The Prime Minister has come to this House on numerous occasions to give statements on EU summits. Department for Exiting the European Union Ministers alone have given evidence to Committees on 35 occasions and have made no fewer than 85 written statements during the lifetime of their Department. My right hon. Friend the Secretary of State for Exiting the European Union has given 10 oral statements to the full House of Commons during the time he has held office.

It would not be in the national interest to release information that will form part of our negotiating position. In order to ensure good governance, it is in the interest of all of us, including those who might have the ambition of serving at some very distant date in a Labour Government, to preserve the system of Cabinet government that allows for good and well thought through decisions.

For those reasons, I have no hesitation in asking my right hon. and hon. Friends to oppose the motion before the House today.

[Several hon. Members rose—]