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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“I am most grateful to my hon. Friend for that point, because the large number of PPSs does rob Select Committees of the talent that they need to function effectively. Very often, the most able Members are selected as PPSs and taken away from Select Committees. To conclude, the academics who appeared before us agreed for the longer term with the suggestion made by Lord Hurd in the previous Parliament that the abolition of “20 Ministerial posts at different levels would not only be popular but would be followed immediately by an adjustment of workload.” We therefore repeat the recommendation made in our original report that, over the course of this Parliament, the total number of Ministers should be reduced to 80, shared between the Commons and the Lords.”
“May I urge my right hon. Friend to take credit for the operations that go right, as well as responsibility for the operations that go wrong? May I remind him of the aftermath of the first Gulf war, when the fatal error was to allow Saddam Hussein to fly his helicopters to oppress his own people again? The Government are right to lead the debate about a no-fly zone, which is gaining support among voices in the United States, as well as from France.”
“May I take this opportunity to inform my right hon. Friend and, indeed, the House that the Public Administration Committee is today launching an inquiry into the big society? Does he share my hope that as we consider things such as volunteering, promoting charitable giving and decentralising public services, we will receive positive evidence from all parts of the House?”
“Does my hon. Friend not recognise that there is a difference between an ordinary election and constitutional change? A common feature of many constitutions is having thresholds for constitutional change. Just because we have an unwritten constitution, that does not mean that we are absolved of any responsibility to show that there is a reasonable threshold for constitutional change. If there were only a 10% turnout in London, where there are no forthcoming local elections, would that really constitute a valid result?”
“Can we dispense with this argument that any kind of threshold somehow provides an incentive for the no campaign to campaign for people to stay at home? The truth is that this is simply a test of whether there are enough people motivated in favour of change to justify it. If enough people are not prepared to vote for change, why should it take place? That seems to me to provide the reason why a threshold should exist for every referendum. Incidentally, when the Conservatives were in opposition, we voted for a threshold in every referendum.”
“One of the reasons for my losing faith in the old system of public inquiries is that, for all the arguments that the Conservative party presented for a fairer distribution of constituencies, we finished up with a manifestly unfair distribution. We need a speedier system, which can use fresher and more up-to-date data to deliver a fairer distribution of constituencies. That should happen.”
“I will not detain the House on that Lords amendment if there is no Division, but I wish to draw attention to the fact that this is a shoddy way to conduct a referendum. It is unconstitutional, it is political—deeply political—and it is not an objective way to address this issue. It will undermine the value of any referendum result, and I shall certainly support a later Lords amendment to address the problem.”
“Let me be absolutely blunt: there will be barely 11 weeks between the Bill receiving Royal Assent and the referendum, even though the Political Parties, Elections and Referendums Act 2000 stipulates that there should be a period of six months in which to prepare for a referendum. This referendum is being indecently rushed. Unfortunately, Lords amendment 2, which proposes that the date should be changed, does not do the trick. It does not require the date to be changed. I do not know whether the Government intend to accept that amendment, but it would have no practical effect. The House of Lords has made clear its discomfort with the fact that the referendum was to be held on the same date as the local elections and the Assembly elections.”
“I agree with my hon. Friend the Member for Broxbourne (Mr Walker) that this whole matter is being rushed. If there is one thing that should not be rushed, it is the prospect of constitutional change. The pressure of time on our proceedings on the Bill arises solely from the Government’s desire to achieve the date of 5 May for the referendum. That date is cemented into the bit of the coalition agreement that was not published, and it exists purely for political purposes. This is a purely political device, perhaps to try to get a yes vote, or to try to boost the Liberal Democrat turnout at the local elections being held on the same day.”
“I echo the point made by the right hon. Member for Blackburn (Mr Straw) that the amendment only requires the House of Commons to think about a poor turnout and how to respond to the result under such circumstances rather than automatically triggering a small yes vote with a low turnout and a new voting system. Does the Minister not recognise the irony of his position? Here we are looking at a referendum that might introduce a new voting system under which a Member elected to this House will be required to get 50% of the votes cast, yet we cannot even put in a threshold to require a 40% turnout to give credibility to the result of a referendum. What serious constitution around the world does not have some form of threshold and why should we not introduce one in this case?”
“I thank my right hon. Friend for his statement, and particularly for his last few words on involving the international players around Afghanistan in a final settlement. Can he say more about who will lead the political settlement around which we hope stability will be maintained as British and American troops withdraw later in this decade? May I point out that cautious optimism represents painfully slow progress 10 years after this war started, and that a lasting settlement is possible only if there is a political settlement that involves talking to our enemies?”
“May I ask my right hon. Friend if we could find time for a short debate about the role of the Committee of Selection? Will he confirm that he is aware that one of our hon. Friends, who was elected to this House to major on the health service, was apparently asked by a Whip and a Minister to decline from tabling any amendments or speaking in the Health and Social Care Public Bill Committee, otherwise she would not be appointed to that Committee? I understand that she has not been appointed to that Committee. We are all grown-ups; we know that whipping happens, but are there not limits to how much Whips and Ministers should be seeking to influence the scrutiny process, and does not this make the case for making the Committee of Selection elected rather than full of people appointed by the usual channels?”
“I congratulate my right hon. Friend on obtaining the debate and on seizing upon the issue. I served on the Centre for Social Justice task force on prisons, chaired by our former friend Jonathan Aitken, and we discovered absolutely no demand from prisoners for that so-called right. Indeed, it was never an issue in the British prison system until the lawyers got hold of it through the European convention on human rights, and to that extent it is completely irrelevant to the real issues that face our prison system and the prisoners in it.”
“Gentleman agree with those words? How are we going to address those problems?”
“I am listening carefully to what the right hon. Gentleman is saying about the margin of appreciation. I think that we are in danger of overselling that as a solution, because the problems with our current relationship with the convention are to do with the drafting of the convention and how the Court interprets its words. Geoffrey Robertson, QC, who is no slouch on human rights and is currently representing Julian Assange, explained in the article “Why We Need a British Bill of Rights”: “The European Convention also failed to include the rights Parliament won by the ‘Glorious Revolution’ in 1689”. He went on to state: “There is mounting evidence that the weasel words of the European Convention are damaging other basic British rights.” He also stated: “The Convention is in some respects out of date.” Does the right hon.”
“I am sure that it will be useful to the House that my right hon. and learned Friend intervenes at this stage. However, when he says that the views of the House are critical, does he not mean that they are decisive? We are a sovereign House; we make the law and the courts interpret it. This is a matter of policy, not a question of legal technicalities. If we do not want prisoners to have the vote, Parliament can legislate for it and that will be final. Does he agree that that is the power of the House?”
“I am most grateful to my right hon. and learned Friend for giving way again. It has also been recognised that statute law overrides international law. It is statute law that should bind the courts of this land. Does he agree with that?”
“May I assure my right hon. Friend that this is not being greeted by local GPs in my constituency as some disruptive revolution, but as a logical extension of all the debate and development in the NHS over the past 20 years or more on giving patients more power and GPs more control over the allocation of resources?”
“I remember being told in the early 1990s that enlargement would have a decentralising effect on the EU, and that the increase in the number of net payers to the EU budget would create downward pressure on it. The history of our relationship with the EU is littered with complacent and wishful ministerial assertions on what will happen as a result of Government actions and agreements in the EU. My hon. Friend is absolutely right.”
“In the next group of amendments we will discuss this same topic in relation to a possible Act of Parliament or referendum. Will my hon. Friend reflect on the fact that it would be inconceivable that a Government could implement such a dramatic change to our legal system and our legal culture without a substantial Act, or several Acts, of Parliament? Is a resolution of the House enough to govern this Executive act—this stroke of the pen—by a Minister at a meeting of the Council of Ministers?”
“The Government have decided to opt in to the Council decision on the conclusion of an agreement between the European Union and Georgia on the readmission of persons residing without authorisation, which makes binding on the UK as a matter of European Community law an international agreement between the EU and Georgia and means that the UK cannot conclude its own readmission agreement with Georgia, should it wish to do so. I just point out that had any of those decisions been in an international treaty outside the European Union’s jurisdiction, they would have required an Act of Parliament, but these things are done by the stroke of a Minister’s pen under the powers in the European Communities Act 1972.”
“Let us be clear: that allows another member state to oblige the United Kingdom to carry out almost any investigative action in the UK, including searching a house, intercepting telephone calls and obtaining DNA for the purpose of criminal proceedings in the requesting member state. The UK has supported the directive on the right to interpretation and translation of criminal proceedings, ceding jurisdiction in that area to the European Court of Justice. This all happened before the European Scrutiny Committee was sitting, so it was all unscrutinised by this House. Any weasel words from the Government about strengthening the scrutiny of the House of Commons should carry a health warning.”
“Friend the Minister says about the number of advocates-general and about maintaining four judges in the European Court of Justice who represent common law jurisdictions, but that is a completely meaningless reassurance in the face of all the other judges and the history of the jurisprudence of the European Court of Justice, which simply is not interested in the common law basis of the jurisdictions of its member states. Having fought against the Lisbon treaty in principle and most particularly on the basis of its potential to interfere in the criminal and civil law of this country, it is astonishing that the Government, since the election, have, for example, approved the directive establishing the European investigation order.”
“Amendments 82, 83 and 84 concern what the Minister set out in a statement last week, in which he described the arrangements for the Government to give formal notification of whether they wished the UK to opt out of certain justice and home affairs matters by 31 July 2014. He made it clear in the statement—I think this is welcome—that the Government intend to allow the House of Commons and the other place to table a formal resolution to approve or disapprove of the action the Government take in these matters. While we are listening to this debate, it is worth reminding ourselves of the magnitude of what we are talking about: a complete rearrangement of the civil and criminal legal system of our country that will move the whole civil and criminal system on to an entirely new basis. I hear what my hon.”
“The Deputy Prime Minister took great interest in these matters, particularly justice and home affairs, when he worked for the European Commission and I understand that he is personally extremely committed to the creation of a federalist criminal justice legal order as part of the state building of the European Union. We are now actively participating in that.”
“I thought the exchanges between the two Front Benchers about the real nature of the coalition agreement were very revealing. We have all known about this from the minute that the coalition agreement was first mooted. That is why I was one of the newly elected Members who went to see the then Leader of the Opposition, just after the election, and said, “Do not do this; let us have another election in short order so that we can deliver our mandate and our promises to the British people.” We knew that we were being bound into an arrangement that would mean having to swap our obligations to our electors—let us face it, handing criminal jurisdiction over to the European Union is not exactly a popular thing to do—for a mess of pottage: a compromise with the Liberal Democrats.”
“One would have thought that we would want to do it, but the Bill as it stands does not include any control whatever over that decision. All we have is a personal assurance from the Minister that he will bring it to the House for a decision. That is welcome, but it not the kind of democratic control that is needed. The Government have just announced the revision of control orders, which will require legislation. That is subject to democratic control. Imagine if the control orders decision was announced by the Government and required no legislation. That is what we are being offered in the Bill.”
“Under the Lisbon treaty, there is a period in which we can opt out en bloc, as the Minister said. These measures include the European arrest warrant and the recognition of the trial of UK citizens in EU countries held in absentia. I have in my passport something about the protection of UK citizens, and here we are, handing over the possibility that UK citizens can be tried in other European jurisdictions without even being there. That is something that we do not do in our own jurisdiction. The creation of the European public prosecutor will happen under the arrangement. The Government will have a straight choice between expanding the jurisdiction of the European Court of Justice over the British justice system, or opting out of the measure. It is a rare opportunity that we have in the treaty to repatriate power.”
“116.] We do not know whether the next five years will see any changes to the EU treaties—I suspect they will—but there is one area in which the Government will have to make a very significant decision: whether to give more powers to Brussels or to bring them back to Britain. I remind the Committee that were the measure outside the jurisdiction of the European Communities Act, there would be no question but that there would be hundreds of pages of Acts of Parliament to implement this stuff, instead of its automatic inclusion in our law and implementation. It is fundamentally undemocratic to reorganise our constitution by the stroke of a Minister’s pen in this way. In crime and policing, EU measures which were passed under the pre-Lisbon third pillar arrangements are in this transitional period.”
“Indeed, the Minister made it clear that he has no intention of letting a Bill through the House that would trigger such a referendum during the lifetime of this Parliament. The Lisbon treaty has made the EU self-amending. The Liberal Democrat MEP, Andrew Duff, who is chair of the Federal Trust, said on the BBC World Service: “The treaty of Lisbon is in force and it won’t be unpicked by the British. It can’t be. It is the statute which will probably govern the Union for some time.” As I said in the debate on Monday, “The problem is that this is not the ‘thus far and no further’ Bill; it is the ‘locking the stable door after the horse has bolted’ Bill. —[ Official Report , 24 January 2011; Vol. 522, c.”
“In order to make the Lisbon treaty, which establishes the European Union’s authority over criminal and civil law, more palatable, there was an arrangement that the United Kingdom could opt out at a later date. One would have thought that a party and a Government who were elected on a platform to repatriate powers from the EU, and who fought against the Lisbon treaty on the principle that the European Union should not have jurisdiction over our criminal law, would be keen to ensure that any coalition agreement reflected that policy, particularly as they have talked about a sovereignty clause, a referendum lock and so on. We know that there will probably never be a new treaty amendment that meets the test that triggers a referendum.”
“Clauses 2 to 7 make a lot of legal arrangements to ensure that decisions taken by the Government are approved by referendum or Act of Parliament. There are certain exclusions that we have already argued about, such as whether the treaty on fiscal union will somehow be exempted from referendum even though it is probably one of the most significant European treaties we will see in our lifetimes. That is the state of the Bill, which has some remarkable tripwires—so many that the Opposition spokesman has been saying, “This is getting too particular and detailed; we will have to have Acts of Parliament and referendums on all kinds of things that are patently ridiculous.” That is why I think that future Governments will wriggle out of the obligations without much difficulty. My amendments concern the opting-out proposals.”
“I am perfectly prepared to accept that some Liberal Democrats have compromised considerably on the Bill. What does the Bill add up to? The problem is that it does not change anything. It does not change the relationship between the European Union and the United Kingdom one comma or dot. It is about the arrangements between the British Government and the British Parliament. We all know that it is designed to give the impression that this and future Governments will somehow be locked down by the referendum lock and will be obliged to have referendums as never before. It is certainly useful to create that expectation because the disappointment when no referendum occurs will then be much deeper, but what does the Bill actually mean?”
“The hon. Gentleman is right. The Bill is completely inconsistent. Relatively tiny matters covered by the Bill and caught by its provisions will have to come to Parliament and may even have to be the subject of a referendum. But this incredibly significant change to our legal system that is taking place now is exempted from the Bill. It is totally illogical. If there is anything that makes a complete nonsense of the Bill, it is this total exclusion of the 2014 decision.”
“Amendment 84 is quite modest; it would require an Act of Parliament before the Government could opt back in to any of the laws that had ceased to apply following the 2014 opt-out decision. This is a question of more or less power being transferred to the EU, which would fundamentally alter our criminal justice system, but it is being left entirely up to Ministers.”
“My hon. Friend is absolutely right. We are going into this with our eyes wide open, except that this Bill has its eyes wide shut. The Bill pretends that there is no decision to be made between now and 2014 about this momentous change to our criminal justice system and the way the law is conducted in this country—to the protection that Parliament can currently afford to UK citizens but is now already being eroded. So I have tabled a series of amendments. There are some choices for the Minister, and I would be interested to know which he prefers. Amendment 82 would mean that the Government have to gain the approval of a referendum before they decide that the UK should not opt out of these laws. Amendment 83 would require the approval of at least an Act of Parliament for the Government to do so.”
“It was not for nothing that Benjamin Disraeli said that England does not love coalitions; if a party is an organised hypocrisy, I dread to think what the correct term for a coalition should be, except as an expedient in an emergency.”
“That is how unaccountable the institutions are to which we are handing over the jurisdiction of our criminal law. That is why I am mystified by the Government’s complacency, except, as the Minister has now admitted, for that fact that we traded away our principles for power. Moreover, we did that not just in the national interest for a short period, but for five years. I am pretty certain that before five years have passed this country will be crying out for a general election. When a country finishes up with a Government who have no mandate, except an agreement that was invented between two political parties, we are in a dangerous situation.”
“I fully agree with my hon. Friend, but I will try to avoid being drawn into that. The great skill in Committee debates is to avoid making the same speech over and over again. However, I will be guilty of repeating something that I have said before, which is that the EU is made up of democracies, but it is not itself a democracy. It is anything but a democracy; it is a bureaucracy. It has some institutions that purport to be democratic, but they have only the most tenuous link with the real aspirations of the peoples they seek to serve. The unaccountability of the most powerful institutions of the EU, namely the Commission and the European Court of Justice, is legendary. They spend money like water and they have yet to have their accounts formally approved by the Court of Auditors for the last 14 years.”
“As the euro collapses around our ears and the peoples of Europe rise up in the streets of their capitals, there could be no better time to do that; and there could be no better time to do it than when the EU itself is asking for new powers and asking us to agree to things for which they need our consent. That is the time we should be asking for our powers and our governance back on a mutually agreed basis. It is lamentable that the Government have not even the willpower to ask for those things.”
“That underlines how this House, 20 years after we signed the Maastricht treaty, which began to establish European governance, is still sleepwalking into a European federation. There are those who wishfully believe that the argument has somehow been won by the Eurosceptics. It is an argument that they do not want to have. They want to avoid it because in order to resolve the democratic government of this country, we will have to confront the EU. There will have to be a disagreement with our European partners, because there is so much pride invested in the document, and other member states have so much pride in having drawn the United Kingdom into those arrangements. They will have to be confronted with the humiliation that they were wrong.”
“There is the guide to standards of conduct in public life and all sorts of things that direct the behaviour and conduct of Members and what we do in the House. However, this document is not there. It, of course, is “Consolidated Texts of the EU Treaties as Amended by the Treaty of Lisbon”, as published by the Government. I have to say that the index is a little thin, which makes it difficult to find one’s way through it. This is the document that now governs this country. Unless we change our relationship with the EU, this will be the constitution of the United Kingdom, as we have no written constitution of our own. These are the laws by which we are governed, but it is not even on the Table.”
“If the Liberal Democrats want to call it an “in or out” referendum, they may do so, but the question on the ballot paper should simply be: “Do you want the criminal justice system of this country to be controlled by the European Union?” I know what the answer would be. If the Government were to hold that referendum, I think that they would be very popular. In fact, it might even make the coalition popular. I recommend it to the Minister. A few moments ago I checked to see whether there is a copy of the document that I am holding on the Table. There are all sorts of things on the Table, including “Vacher’s”, the Standing Orders, “Erskine May” and documents relating to the proceedings of the House.”
“I am not sure how to answer that question. If the hon. Lady does not mind, I will continue my remarks, because I intend to sit down shortly so that other Members can take part. All I will say is that those decisions should be reserved not only for Parliament, but for an Act of Parliament. They are of such significance that I would prefer the Government to accept amendment 82 so that a decision on those matters is made by referendum. I remind the Minister that we originally stood on a manifesto commitment to have a referendum on the Lisbon treaty. Indeed, the Liberal Democrats, with whom we sit in coalition, wanted a referendum on the EU as well. Given that common ground, I cannot for the life of me understand why we should not have a referendum on at least this aspect of the Lisbon treaty.”
“That is not what was envisaged when we discussed the strengthening of Parliament in the previous Parliament. A great disadvantage of these very curtailed debates on contentious pieces of legislation is that there is an incentive for people to use up the time for the convenience of the Government, rather than to provide a platform for those who actually want to discuss the Bill.”
“I rise briefly to plead that we do not divide the House on this matter, because time is pressing. However, I am prepared to forecast that we will not get beyond the first group of amendments today. The Bill, if about nothing else, is about what might trigger a referendum, and the first group is concerned with that matter. It is extremely likely that we will not discuss much else today, given that that is the heart of the Bill. That suggests that the timetable motion is ill-conceived. Although it is generous of the Government to add an extra day, that does not resolve the problem we will have today, which is that it is most unlikely that we will discuss anything about clauses 2, 3, 4 or 5, the new clauses relating to clauses 1 to 5, or anything else.”
“I agree with my hon. Friend. We have yet to find a way of respecting the Government’s right to obtain their legislation in reasonable time, subject to the consent of the House, and of reasonably limiting the time spent on debate, while ensuring that all parts of the Bill are debated properly. We do not want to start following the example of the other place, where a tiny minority of Members are brutally filibustering, but we do need to improve the procedures that we have today. It is a sad comment on the state of the House of Commons under this new Government, who purported to believe in something called “new politics”, that we are carrying on the old politics implemented by the Labour Government.”
“Perhaps my hon. Friend is going on to say this, but I would have thought that he would be disappointed that we will not have time to discuss amendments 48, 49, 50 and 51 on holding an in/out referendum, which he champions. Personally, I do not champion it, but does he not regret that we are most unlikely to be able to discuss those amendments?”
“I am listening carefully to my hon. Friend, not least because I put my name to his amendment. If the significance condition was not met, and therefore the Government were not proposing a referendum, do I understand correctly that legislation would still have to be brought to the House? If so, would the House not get an opportunity to give an opinion on whether the significance condition was met in any case? Will he clarify that?”
“May I put it to my hon. Friend that if we accept the premise of my right hon. Friend the Member for Charnwood (Mr Dorrell) that there is no point putting the amendment in the Bill because the Act will have to come before Parliament in any case, we might as well ask, “Why are we bothering with the Bill at all?” The whole basis of the Bill is to ensure that the Government’s feet are held to the fire over the definition of the treaty. The whole business of significance is totally malleable. If my right hon. Friend the Member for Charnwood does not understand that we need to treat such matters differently from how we treated them in the past, I honestly expect to see him in the Opposition Lobby on Third Reading.”