Sir Bernard Jenkin
MP for Harwich and North Essex · Conservative · United Kingdom
“Despite long and historic disagreements between successive UK Governments and Israel, it has remained a steadfast ally in counter-terrorist efforts to keep our people safe in this country. We are now embarked, it seems, on a full diplomatic dispute with Israel and tit-for-tat expulsions of diplomats.”
“I would very much have liked to have discussed the medical devices questions arising from the Bill. The Minister made an incredibly short speech about that important matter. It is quite clear that these provisions are part of the covert dynamic alignment with the EU and the covert rejoin agenda being pursued by the Government.”
“I am as keen as anybody to get on with discussing the Health Bill, but this topic is too serious an opportunity to miss, given that the hon. Member for Leeds Central and Headingley (Alex Sobel) has raised such important issues. I really commend his speech and his initiative. Everybody should read it.”
“The Minister shakes her head, but she is yet to give a good reason as to why this measure is in the Bill. When we had an Adjournment debate in July with the then Minister for patient safety, the hon.”
“The chief executive of the CQC is wantonly conflicted in terms of looking after the safe space, so he cannot be the one left in charge of that function. The real point here is that we are missing the opportunity to save so much money. Governments keep having public inquiries.”
“I asked the Minister, in a letter I sent her after the debate in July, to give us the information on how much the transfer of all this would cost. Nothing has arrived. I never had a reply to the letter. Of course, the Government have changed the Minister and the new Minister for patient safety, the right hon.”
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“There has been controversy about the role of ministerial directions. The former Minister for the Cabinet Office, who was responsible for civil service policy, urged permanent secretaries to ask for ministerial directions to facilitate the making of decisions. That was understandable because he felt frustrated that, as he saw it, decisions were being blocked. On the other hand, senior civil servants pride themselves on having a good relationship of trust and understanding with their Ministers and are therefore reluctant to reach for the requirement for formal direction. They would far rather have a relationship with their Ministers that is based on a shared understanding of the concerns about a particular issue. I am bound to say that I rather side with civil servants on that one.”
“I am grateful for the hon. Gentleman’s support and for his work on the Committee. The one point that I will pick up on is his comment that this must never happen again. I can tell you for certain, Mr Speaker, that it will happen again. The question is whether we have a system in place that allows us, each time it happens, to learn, rectify and prepare for the future to make sure that it happens less and less often. That is what our recommendations are really about.”
“I am certainly very grateful to David Quirke-Thornton. There are still discussions to be had between statutory social services and the charitable youth sector about what gaps in provision exist. Those would be productive discussions. The question of inspection that the hon. Gentleman raises is a very important one. Ofsted did go into parts of Kids Company, but the senior executives of the charity did not find that very welcome. If social services are inspected, perhaps there is a case for inspecting charities of this nature, particularly if they are in receipt of public funds and if they have caring and safeguarding responsibilities. The private sector is investigated in that way—boarding schools and so on—and charities should be treated in the same way.”
“My hon. Friend has raised the issue of sovereignty, and the draft decision document published this week by the European Union contains a section called “Sovereignty”. If ever there was a misnamed section of a document, it is this—perhaps my hon. Friend will come on to that. The one thing that this document does not return to the United Kingdom Parliament is sovereignty over the laws that are made for this country. Indeed, it promises a “red card”, which is no more than an extremely cumbersome method of qualified majority voting in the European Union.”
“Is not one of the more ridiculous parts of the document published yesterday the idea that we need the EU to recognise more than one currency in the EU? Given that Sweden voted in a referendum to stay out of the euro, when it did not have an opt-out, as was negotiated in the Maastricht treaty for the UK, is it not clear that if a country has its own currency, the EU cannot take it away, and that we do not need a treaty change or anything to tell us we can have the pound?”
“Does my hon. Friend agree that one of the most worrying sentences in the document published this week relates to what will occur if the eurozone seeks to deepen its integration? This sentence reads: “member states whose currency is not the euro shall not impede the implementation of legal acts directly linked to the functioning of the euro area and shall refrain from measures which could jeopardise the attainment of the objectives of the economic and monetary union.” Given that there is going to be a new treaty and we do not know how it is going to affect us, is this not in effect giving up our veto?”
“May I point out to my right hon. Friend that the former director general of the legal service of the Council of Ministers, Jean-Claude Piris, has said: “There is no possibility to make a promise that would be legally binding to change the treaty later”? In fact, he then used a word which one might describe as male bovine excrement. Can the Prime Minister give a single example of where the European Court of Justice has ruled against the treaties in favour of an international agreement, such as the one he is proposing?”
“May I helpfully read a comment from the paper that the Government have distributed to Conservative Back Benchers, which states that “this package could mark the high water-mark of EU integration for the UK”? I remind my right hon. Friend that that is exactly what the then Conservative Government said about the Maastricht treaty. We did not believe them then, and we do not believe him now.”
“May I inform my right hon. Friend that the Public Administration and Constitutional Affairs Committee will be scrutinising those proposals very carefully indeed? We want to make sure that the judges are interpreting the Freedom of Information Act as Parliament truly intended, but I can tell him that there is no going back on freedom of information.”
“The key recommendation of this report is that future delegations are chosen by free, fair and open elections. Subject to the approval of this recommendation by the House, the Procedure Committee would consider how the reform might be implemented, also so as to reflect the gender balance requirement. We recommended that this system of election could be extended to other delegations, such as NATO, the Organisation for Security and Co-operation in Europe, and the British-Irish Parliamentary Assembly. I very much hope that the House will welcome this proposal for democratic reform in the way that the UK appoints its most significant parliamentary delegations, and that the House will vote to approve it soon.”
“We therefore recommend that, in future, the delegation should be elected, not appointed by the Prime Minister as now, and moreover elected by the membership of the House of Commons along similar lines to those on which the House now elects members of Select Committees, but also providing for the gender balance required in this case. This means that the House can object to the inclusion of delegation members who may be considered unsuitable, as is the case with motions on the appointment of Select Committees. This has not been the case before. Following the success of the Wright Committee’s recommendations to reform elections to Select Committees, it seems only right that the same principles should be extended to parliamentary delegations.”
“However, the Rules Committee of the Assembly said that the UK Parliament should “review with the utmost diligence” the way in which the delegation is appointed to “bring it fully into line with . . . democratic principles”. Parliament is not bound to take any action on that advice. Nevertheless, we recommend that the House should revise the way in which delegates are chosen in the future, on the basis that this is how a great Parliament makes decisions, and we should represent the highest standards of democracy and accountability to our fellow European parliamentarians.”
“I do regret this and apologise to him for it. Nevertheless, his evidence is published on our website. It would not have altered the substance of our recommendations, but it speaks for itself. The Parliamentary Assembly of the Council of Europe does not much restrict how its delegates should be appointed. It Rules Committee states that delegates are “elected . . . or appointed from among the members” of each Parliament “in such manner as it shall decide”. My Committee heard that the Conservative party used a system based on patronage of the leader or the so-called usual channels, meaning the Whips Office. As such, PACAC concludes that the Government have not broken any rules of the Assembly.”
“Following a debate in this House to elect a new delegation for the present year, which saw a Back-Bench motion defeated by the payroll vote, PACAC received a letter from my right hon. Friend the Member for North Shropshire (Mr Paterson) and the Committee resolved to invite the Leader of the House to give oral evidence on the matter. We also received written evidence from my hon. Friend the Member for North Thanet (Sir Roger Gale), who is the newly appointed leader of the UK delegation to the Parliamentary Assembly of the Council of Europe. We also received written evidence from my hon. Friend the Member for Christchurch, although it was very late in the process. I apologise to him for the fact that we had completed and resolved to make our report before his evidence reached me or the members of the Committee.”
“It has been established practice, until this Parliament, for the existing members of the delegation to choose to retire from it, and for potential new members to express an interest in joining. This was not the case in November, when certain right hon. and hon. Members were simply removed from the delegation by fiat. Some of those so removed had wanted to continue, including my hon. Friends the Members for Christchurch (Mr Chope) and for Gainsborough (Sir Edward Leigh), and my right hon. Friend the Member for Chesham and Amersham (Mrs Gillan). The House should note that my right hon. Friend is a member of PACAC, but she therefore recused herself from the Committee’s proceedings on this matter.”
“I am grateful to the Backbench Business Committee for the opportunity to make this statement on PACAC’s report on our brief inquiry into the appointment of the UK delegation to the Parliamentary Assembly of the Council of Europe, which is published today. When the membership of the new delegation was announced in November, there was some disquiet among some right hon. and hon. Members, including myself and other members of the Select Committee, about the way the delegation was chosen and appointed. Concerns were raised by colleagues and the media that the way some Conservatives voted to defeat the Government on an amendment to the European Union Referendum Bill might have influenced those decisions.”
“I believe it is the first time that any review of the procedure has been undertaken. That complies with the request made to us by the Rules Committee of the Parliamentary Assembly, but it is a matter for the House as a whole how it takes this matter forward. The Committee cannot bind the House on how it should proceed. Perhaps the official Opposition will provide time to ensure that the House has an opportunity to debate our recommendations.”
“I would recommend either that Back-Bench business time be provided so that my hon. Friend can bring forward a motion, or that that is done by Her Majesty’s official Opposition, who clearly feel strongly about the matter. I imagine that every member of my Committee would support that.”
“I very much agree that there are now different expectations about how these matters should be decided. I have in my hand a written ministerial statement issued only yesterday, entitled, “UK Delegation to the Parliamentary Assembly of the Council of Europe”. Admittedly, it only removes one peer and appoints another, but it was issued by the Prime Minister. He, of course, is a parliamentarian and the leader of a political party, but I think that the expectation now is that these matters should be handled by the two Houses and clearly ought not to be decided by the Executive. We all know what “the usual channels” means; it means decisions being made in secret, reasons not being given, and there being very little accountability. I think that people expect us to improve on that in today’s age.”
“I can confirm that the report was agreed unanimously. The only evidence we have taken from the Government is the oral evidence from the Leader of the House. As we are learning, what a Minister’s private thoughts might be on certain matters might not reflect what they say as a Minister. I hope that the Government will reflect on the Wright Committee and the success of Select Committee elections and recognise that times are changing. The days when they could hand out delegation places to Members of Parliament on the basis of grace and favour are over. That does not win us respect in the Council of Europe or among other parliamentarians across Europe, to whom this House should be setting an example.”
“However, the Rules Committee made it clear that people might have misunderstood the confusion of roles that we have in this House whereby the Prime Minister is also leader of the governing party and sits as a parliamentarian. The more classical separation of powers that is expected does not exist in our constitution. That is not a matter of shame for us, but we are now a little behind the times. We should be demonstrating how, in our procedures, we expect the best, and the most open and democratic, practices to be adopted—not from the age of deference but the age of popular democracy.”
“I pay tribute to the longest-serving member of PACAC, or whatever name it had in previous Parliaments. The hon. Gentleman has been an enormous fund of institutional memory on that Committee, and that is extremely useful. During our inquiry, he pointed out that his party already has a form of elections for its delegates that provides for the complexity of providing gender balance. Some of the objections that have been raised to say that we cannot do this are therefore clearly confounded by the experience of his party. I think it would be a mistake to say that this episode has brought shame on our country. The hon. Gentleman is right to make comparisons with other countries that do things better.”
“Without straying too much into Greek terminology, I think that what Prime Ministers have they tend to want to keep and not give up. There was perhaps a failure of imagination about the effect of what people wanted to do, but that has provided this House with an opportunity to review, to debate, and, I hope, in due course to decide on how to make sure that we bring our procedures into the democratic age.”
“I am very grateful for, and flattered by, my hon. Friend’s invitation. It is important to say that were I to undertake to do this, I would want some assurances from those who say they support these proposals that they will make strenuous efforts to make sure that people turn up and vote for them, because we often have debates in this House where very few turn up, and then the Government decide to take no notice. The Member for Great Grimsby (Melanie Onn) is nodding and saying that that may well be the case, so it will be a very worthwhile thing for me to do. I will consider it and hope to bring forward a motion proposed by every member of my Committee.”
“May I invite my right hon. Friend to make a list of the European laws and European Court rulings he believes depend primarily on the “ever closer union” phrase in the treaties?”
“Would it be right to be able to use what one might call a “ding-dong” procedure, as opposed to a ping-pong procedure, simply to force through amendment to primary legislation in this way? I assure my right hon. Friend that we will be looking at these matters in great detail.”
“May I welcome my right hon. Friend’s statement and join him in thanking Lord Strathclyde for his report? The Government could not have chosen a safer pair of hands for such an inquiry, and of course it does avoid the whole issue of the composition and other aspects of the House of Lords. Perhaps that is timely and convenient, but we will have to address those things. May I welcome the proposal for dealing with this by primary legislation? The Public Administration and Constitutional Affairs Committee will wish to look at this, just as the Procedure Committee will. We have some questions. How often will this procedure be used? What kind of behaviour of the two Houses will we adopt? Would it be justified in using this procedure to deal with particular SIs that amend primary legislation through the so-called Henry VIII clauses?”
“I join in the general congratulations to my hon. Friend the Member for Bury St Edmunds (Jo Churchill) on obtaining this debate, but will my right hon. Friend concur with two things? First, the service has become intolerable. Our commuters have had enough, and we should not be asking them to put up with a service continuing at this level. Secondly, I am afraid that the capacity of the network is not up to standard. We will have more housing in Essex, and unless we have improvements in capacity, we will go on having a vulnerable and unsatisfactory network.”
“The Committee I chaired in the last Parliament, the Public Administration Committee, conducted an inquiry into civil service impartiality in referendums in respect of the Scottish referendum. It is one thing if there is a Government in Edinburgh on one side of the argument and a Government in London on the other, each publishing arguments for and against a particular proposition, but where will the balance be in this referendum, given that there is only one United Kingdom Government who will only be on one side of the argument?”
“There is a rather modern, corrosive view that the concept of impartiality, when applied to civil servants, means simply that they should be prepared to work for whichever party happens to be in office, that by so doing they are therefore impartial and that their conduct can then be quite partial and loaded under the Armstrong doctrine, which states that they have to support the Government of the day. Actually, I think most people in this country regard impartiality as a rather more imprecise quality, with a higher moral tone. They see it as having something to do with objectivity, with balance and with not being compromised into becoming a mere cheerleader for one point of view or another.”
“I point out to the hon. Member for Glenrothes (Peter Grant) that, whether he thinks it an irony, an accident or something more sinister, it is the people who are in favour of Britain remaining in the European Union who are championing Lords amendment 6, while those who support the leave campaign regard it as a bit of a Trojan horse that would enable the publication of a lot of subjective judgments loaded in favour of one side and not the other. I referred to the report published at the end of the last Parliament by the Public Administration Committee entitled “Lessons for Civil Service impartiality from the Scottish independence referendum.” The reason that we produced the report was to look at the question of impartiality.”
“It would be one thing to place a learned, detailed and technical paper in the Library of the House of Commons in order to present the depth of analysis that the hon. Member for Glenrothes believes would be justified, but would the Government produce such a subjective document in a form that could be circulated to every household? How would we feel about that, 10 weeks before a referendum? It is reasonable for the Government to explain the outcome of their negotiations, but it would not be reasonable for them to use public money to present their entire world view on European Union membership as part of a campaign to remain in the EU.”
“Indeed, but it is unavoidable that the Government are going to produce information of this kind. The second duty, in Lords amendment 6, is not something that I expected to see. The Lords amendment asks the Government to produce judgments and opinions on a vast topic, using examples that, by their very nature, will be subjective. I am not at all surprised that the Electoral Commission has decided that it would be far beyond its competence to make a judgment about what such a document might be. The Government have accepted this amendment, but if they are to justify retaining it—as I expect them to do—they will have to answer some questions about it. What do the Government mean by the word “publish” in the amendment?”
“That is how it will work in this case, assuming that a vast number of Ministers do not leave the Government’s view too isolated to be any longer credible as being that of a Government.”
“That is a good question. We all expect that, before long, there will be agreement among Ministers that some will not be toeing the Government line on this question. It is too big a question for it to be otherwise. The reason that we have referendums is that the questions split parties. We could not have a general election on a question that split the parties on both sides of the House. It would be impossible to decide on the issue in that way. It would be absurd to have a referendum and then try to corral all the Ministers into one point of view. The precedent in 1975 was that collective responsibility was abandoned, although that does not mean there is not still a Government view—there is a Government view and a dissenting view.”
“That is why all referendums throughout the world have systems to try to contain what Governments do during the final phases of the referendum, in order to try to create some fairness.”
“Friend is right to say that people trust what the Government say, which is exactly why what they say should be curtailed and limited: it has a disproportionate effect on the voters. There is absolutely no doubt about that. If a leader of a party says something, that has less of an effect than if the Prime Minister says something. That is why we have a purdah period, and the House has forced the Government to accept that there will be a proper purdah period. Otherwise, if we have what we had in 1975, whereby the Government can carry on regardless, being the Government and yet expressing partisan views on one side of the argument and not the other, an unfair referendum would be created.”
“I am grateful to my hon. Friend for his intervention. I have already said that the first publication is perfectly justified, as the Government are entitled to explain what they have negotiated and to give their opinion on that. If he would like to do so, he might explain how they are going to give “information about rights, and obligations, that arise under European Union law as a result of the United Kingdom’s membership of the European Union” in a concise and simple fashion which is not loaded. Perhaps he could tell us which countries should be used as “examples of countries that do not have membership of the European Union” in order to explain the consequences of leaving the European Union. We are talking about very subjective judgments, and of course that is what the debate between the yes and the no campaigns will be about. My hon.”
“I leave two questions for the Minister as he responds to this debate on Lords amendments 5 and 6. First, what does “publish” actually mean? What do the Government intend to do by way of the publication of these two reports? Are they just to be White Papers or are they to be propaganda circulated by the Government in some way much more widely? Secondly, how will he ensure that this is done in the highest spirit of impartiality, using that word in the way most people would expect it to be used? How is he going to ensure that these publications are genuinely objective and not just a means of advancing one side of the argument against the other?”
“I have to be mindful about whether that is taking us beyond the scope of what we are discussing, but it reminds me of a very controversial element of the Government’s conduct of the Scottish referendum, and I have some sympathy with arguments that have been made on this point. I refer to the use of a permanent secretary to give a speech on behalf of the Government’s view while this was purporting to be the publication of advice to Ministers. Such advice should never be published. On any orthodox analysis, the opinions of civil servants in the form of advice to Ministers should never be published, but this was used as part of the propaganda. Many Scottish National party Members would regard that as a gross misuse of civil servants during a referendum period, and we need to try to avoid that.”
“It would completely invalidate the result, it would destroy the purpose of having a referendum and it would mean that this issue was not settled in a fair manner at all. We have framed an amendment to the new clause, which I hope will at least draw the Minister out to explain how everything might work.”
“The result of this provision, which was included in the Scottish legislation passed by the Scottish Parliament in order to prevent the same thing from recurring, is extraordinary. It offers the possibility that the Electoral Commission “may” designate one campaign and not another without any restraining factors. In good faith, I do not think we should question the bona fides of the Electoral Commission as to whether it would ever do such a thing, but this is what the Lords amendment actually contemplates. It would be unconscionable, in this of all referendums, for there to be only one designated campaign. It would be intolerable if Parliament let this go on to the statute book without even a discussion about what the consequence would be.”
“I am a director of the company Vote Leave, which will be applying for designation The Lords amendment added a provision that suggests that it is perfectly okay for the Electoral Commission to designate one campaign supporting one proposition but not another campaign supporting the opposite proposition. The reason why that has been put into the Bill is perfectly understandable; in the 2011 referendum in Wales there was no application from a no campaign and therefore it was impossible for the Electoral Commission to designate a yes campaign, even though there was a very respectable yes campaign. It was suspected that there was an element of sabotage by the no campaign, because it wanted to prevent the yes campaign from getting designation as the no campaign was going to be incredibly weak, whether or not it was designated.”
“It was an incredible damp squib of a speech as far as the remain campaign was concerned, and it had extraordinarily little impact, because he was very careful about what he said. That might be because he sees that both business and the country are divided on whether we should remain in the EU and that the arguments are much more finely divided than on the currency question in the Scottish referendum. I wish to deal with Lords amendment 13 and amendment (a) proposed thereto, which stands in my name and that of my hon. Friend the Member for Stone and other colleagues. This relates to another startling change made in the other place on the designation of organisations to campaign for or against the particular proposition. I should declare an interest here—it is not a remunerated interest.”
“The Governor of the Bank of England is a different case. He is not a civil servant, so he is not bound by the civil service code and he does not advise Ministers as a private civil servant—he gives his advice very publicly. Although I was prompted by that example, I think it is reasonable for the Governor, judiciously, soberly and carefully to proffer his advice. I think his advice on the currency question in the Scottish referendum was very germane, but I do not think it was necessary for the permanent secretary at the Treasury to give similar advice. On the speech that the Governor made on the European Union, the remarkable thing about it was how little he was prepared to say which supported the Government’s view. He did not put himself out on a limb.”
“I hope the Minister will tell us that he can accept our amendment. If he cannot do so, I hope that he will make it clear that the substance of the amendment should be understood, and that it would be unconscionable to have only one campaign designated in this referendum. If an application is made in such a way as to be construed as vexatious or frivolous, such an application would have to be considered. We should be in no doubt that there will be an application in respect of both sides of this campaign.”
“I am waiting to hear what the Minister has to say on that point. The proposed amendment changes the wording. It now says that it should be allowed to make that decision only if “no permitted participant makes an application to be designated under section 109 as representing those campaigning for that outcome except for a permitted participant whose application the Commission states is, in its opinion, vexatious or frivolous.” That would mean that, provided there are two legitimate applications for designation, the obligation would be clear in the Bill that the commission has to designate two campaigns. That is not clear in the Bill at the moment. If one such campaign was “vexatious or frivolous” and was clearly just there to spoil in some respects, the Electoral Commission would have to justify its action.”
“Electoral commissions in countries such as Ireland or Denmark have a very much more active policing role in respect of fair referendums, and that is a role that we, in this country, have not set up the Electoral Commission to undertake.”
“In closing, let me add that in all three amendments we have been discussing the potential role of the Electoral Commission. In respect of amendments 5 and 6, the Electoral Commission has shrunk from the possibility of being given an obligation for which it is not fit. It is worth reminding ourselves that we have already developed one new role for the commission during the passage of this Bill, which is that it will give its advice about possible new regulations on the restriction of section 125 of the Political Parties, Elections and Referendums Act 2000 in respect of purdah. It did not want that obligation, but we gave it to it.”
“I agree with my hon. Friend, and will add that, where the Electoral Commission clearly has a duty, its decision can be judiciously reviewed. In respect of the designation of only one campaign, I have absolutely no doubt that there would instantly be a judicial review, and I speak with knowledge aforethought. In the absence of the duties on the Electoral Commission —for example, to provide for impartial and objective information from the Government—it is a moral imperative on Ministers to ensure that they undertake their obligations in the spirit of a fair referendum, and not to abuse the trust that this legislation places on them with regard to the publication of that information.”