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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“It is a great pleasure to follow my hon. Friend the Member for Hertsmere (Mr Clappison), who made an absolutely outstanding speech. I should like to echo a great many things that he said, but brevity does not allow. I do, however, point out that the context of the debate is the fact that the current deluge of initiatives, the possible ending of opt-outs, the new legislation that is coming through and the expansion of the legal order do not require the expansion of competences. The competences for those things are already in place, so they will not trigger referendums. My hon. Friend was right to emphasise a point that my right hon. Friend the Member for Wokingham (Mr Redwood) made. We live with an unwritten constitution, and institutions have powers that are not written down anywhere.”
“Yes, and without wishing to digress, I point out that Lord Phillips, the current president of the Supreme Court, qualified article 9 of the Bill of Rights in a recent judgment by suggesting that the doctrine of implied repeal applies to it. The Supreme Court is questioning the Bill of Rights itself, and if we are not aware of how parliamentary sovereignty is now being questioned, we are not living in the real world. I listened to the hon. Member for Caerphilly (Mr David) say that the clause merely reaffirmed the status quo, but the status quo is not a static situation. It is constantly fluid, and the rather lame attempt in the clause to address the situation is causing great concern.”
“We know where sovereignty lies in the British constitution—here in Parliament. Under a written constitution, it does not necessarily lie with the people, although the authority to exercise it might lie with the people. I would argue that the authority of Parliament’s sovereignty also rests with the people. Under the American constitution, sovereignty is dispersed among various institutions but ultimately rests with the judges. If we moved towards a written constitution, we would overturn the democratic constitutional settlement that we have enjoyed in this country and that has given us such flexibility and agility for 300 years. We would lock ourselves into a judicial system, which was fundamentally undemocratic because it would be ruled by judges, not the British people.”
“What has changed is the nature of the legal order in the EU and the UK’s relationship with that legal order. If it had been explained to Parliament in 1971, when the European Communities Bill was progressing through the House, that in future a UK court would be able to strike down an Act of Parliament in the name of the European Union, there would never have been any possibility that we would have joined. The development of the European legal order, with the huge number and range of powers that have been passed over from the UK to the EU, means that I fail to see what competences the EU does not now possess that it could ever possibly need in order to become a fully fledged state. If the hon. Gentleman does not recognise that the situation is fluid, I think he is living on another planet. He had better listen to the rest of my speech.”
“I fully accept that my right hon. and hon. Friends on the Front Bench have attempted to take a step in the right direction. However, by the advice that they have accepted and their framing of the clause, they have not achieved the objective or made any progress, and they may have set us back. To put it bluntly, if clause 18 is all that Parliament has to say about its sovereignty, that is an invitation for the judges to come for us, as I shall explain.”
“Minister, I must advise you not to break the law, as otherwise you will be personally liable.” Do Members get the point? Ministers have to obey the law and accept legal advice. Unless we sort out the sovereignty of Parliament and make it explicit that Parliament can suspend European Community law in selected circumstances, Ministers will not be in a position to exercise the freedom that Parliament has given them.”
“A little earlier, the beef ban was mentioned. I was a humble Parliamentary Private Secretary in the Scottish Office at the time, and we had a lot of discussion about how it could possibly be legal for the EU not just to ban the import of beef into other member states, but to ban the export of British beef from the UK to third-party countries. We were banned from exporting to anywhere, and there was some discussion about whether we could suspend the effect of that legal instrument to stop the EU preventing us from exporting our beef to other countries. The advice was, “Oh no, Minister. You can’t do that because it would put us in breach of the European treaties, infraction proceedings will be taken against us in the European Court of Justice and we will be found to have broken the law.”
“What we as a Parliament need, in those circumstances, is the ability to negotiate partially, to pick and choose from a menu of options. But that would require Ministers to be able to legislate to suspend this EU instrument or that EU instrument. For example, they would need to be able to suspend EU City regulation so that we can get our competitiveness back. The Prime Minister’s remarks on Monday, about his pro-jobs agenda and a flexible labour market, are another example. The coalition also says that it wants to renegotiate the working time directive to recreate the competitiveness of the British labour market. So Ministers would need the option of passing an Act of Parliament to suspend the application of certain EU instruments, but the question is whether that option will be available to them.”
“If we were to elect to have a separate trading area—to leave the single market—but we wanted to continue to trade with that market, we would need a trade agreement, so we would need to negotiate one. Immediately, we would need renegotiation. We constantly hear it said, “Oh, if you Eurosceptics want to leave the European Union, why not be completely honest about it?” The pro-Euros—the people who are dedicated to the annihilation of the sovereignty and independence of this country—always put the issue as a binary question and, to an extent, they are right. It would be a self-fulfilling prophecy—a referendum would become a matter of leave or stay. If we are not sovereign in this Parliament while this country is a member of the EU, the only option is to jettison all the treaties and Acts, so we have very little flexibility.”
“Instead, it will throw into flux the question of our membership of the EU, and the Government of the day will have to decide how to use that referendum to negotiate a new relationship with the EU. We will not stop the trains running through the tunnels and cancel all the flights and the trading. We will still have to have a relationship with the European Union. Suppose that we wanted to take back control over our trade and to exit the customs union. We would need to have a renegotiation, sector by sector, of every part of the British economy’s trading relationship with the EU. The point about a customs union is that there are no barriers—it is a single trading area.”
“Many of my colleagues—I have talked to them in the Lobbies as well as hearing one or two speaking today—think that clause 18 is not the fight to have. If I may paraphrase my hon. Friend the Member for Daventry (Chris Heaton-Harris), he said that other clauses were much more important. It is not an either/or. It is suggested that somehow a referendum would be a panacea. People seem to think that as soon as we have a referendum—preferably an in or out referendum—we will be able to settle the issue. The truth is that we may one day quite soon have a referendum on the European Union. It might be on the question of an additional treaty or power, and it might turn into a referendum on in or out. But the actual fact of a referendum will not solve anything.”
“I will revert to that later. The great danger of the European constitution was that it was explicitly and legally autochthonous. It derived its authority from itself and its own roots. At least the Lisbon treaty reverted to the principle that authority comes from the member states, but it contains the important and dangerous declaration about not only the primacy of EU law, but the EU’s constitutional supremacy over the constitutions of member states. That means our Parliament. I therefore fail to understand how anyone can say that there is no threat from the EU to the sovereignty of this House. That lot over there signed a treaty, without a referendum, that created such a threat. That has given rise to a demand for clarification about the sovereignty of Parliament in some form.”
“We sought alternative legal advice and were assured that, in all probability, the domestic British courts would uphold Parliament’s sovereignty and ability to suspend those legal enactments. But that is the point. We might have it now, but will we have it in the future?”
“As Martin Howe QC said in evidence to the European Scrutiny Committee, the Bill might stop us on the escalator, but it does not stop the escalator going up. A constant stream of powers and functions—not new competences or changes in voting arrangements that will trigger referendums—is still travelling in one direction to the EU. It is in the textbooks: it is called the doctrine of the occupied field. Once a power has been gained by the EU, the EU can only delegate it back to member states; member states cannot get it back. It is a doctrine formulated, of course, by the European Court of Justice in order constantly to consolidate the federal character of the EU.”
“I fully accept that there is an argument and a balance of interests to be struck. The hon. Gentleman is arguing that it is always in our interests to accept a European Community legal order, but I am suggesting, quite reasonably, that it might not be. There might come a time when it is not in our interest to accept a European legal decision. Sadly, Governments tend to be driven by such a fear of confrontation with the EU that they will agree to anything in the long term. That is what has been happening, and this Government are thinking, “We have so many difficult fish to fry at the moment, we had better not confront them on this. This is the important thing we have to go for.” As a result, more and more power seeps away, and I put it to him that sooner or later that has to stop.”
“This is the crux of why we need a true sovereignty clause.”
“I totally endorse that comment. There might even be in this coalition, for reasons of political convenience, a will in the wrong direction. It is certainly not what the British people want or what we stood for in our election manifesto. Provided that the UK courts recognise the sovereignty of Parliament, any legal dispute or clash between the British legal system, under the sovereignty of Parliament, and the European Community legal system, would be resolved by political negotiation. However, that is only the case so long as the UK courts recognise the sovereignty of Parliament and our right to suspend selectively legal instruments. That is a very important negotiation lever. But will that lever be available to Ministers in the future? Will that option be available to Parliament and future Governments? That is where the challenge lies.”
“We make the statute and statute overrules everything, so if Parliament is sovereign and says in statute that it is sovereign, we clobber whoever challenges that; indeed—it is up to Parliament—we could actually sack the judge who tried to do that.”
“I think I am safe to agree with what the hon. Gentleman says, and that is why clause 18 is not a sovereignty clause, as he says. Therefore, if he agrees with everything that I am saying, I cannot quite understand why he does not want to make clause 18 a sovereignty clause. It would be quite easy to do so. I cannot for the life of me understand this. What could be less contentious than a declaration in the Bill that said, “The sovereignty of Parliament is hereby reaffirmed”? The idea that this would somehow open the issue of parliamentary sovereignty to judicial interpretation seems to me the daftest bit of legal advice of the lot.”
“To that extent, it bears his imprimatur, but he speaks on behalf of the British people on these matters.”
“Friend the Member for Stone represents an all-party Committee that unanimously accepted much of what Professor Adam Tomkins said. It is now time for Ministers to accept that they might not be right on this. As I said to the Minister for Europe yesterday afternoon, I have been accused for 18 years of being much too pessimistic about the direction of the European Union, but when have I been proved wrong? That pessimism has been borne out time and again. That has not made me a bitter person; it has made me persistent. I congratulate my hon. Friend the Member for Stone on his incredible persistence, because one thing is certain: this argument would not have been advanced with such sincerity and intellectual rigour without his personal intervention.”
“Absolutely, and it would not be open to Lord Hope or any others to say that the sovereignty of Parliament was being qualified bit by bit because the rule of judges was the fundamental principle of the constitution. It would not be open to him to say that, and Parliament would be able to make it clear to him explicitly that that was not in the constitution of this country. We should want to do that, because we are democrats and we believe that we hold sovereignty on behalf of the British people. We want a democratic political settlement in this country, not rule by judges. That is not just the view of a few people on the Conservative Back Benches; I would hazard a guess that, when it comes to the crunch, it is the view of the British people—the constituents we represent. My hon.”
“Clause 18 can be read simply as a historical fact. It does not give continuing force to the sovereignty of Parliament. It states: “It is only by virtue of an Act of Parliament that directly applicable or directly effective EU law…falls to be recognised and available in law in the United Kingdom.” That is a historical fact, and can be relegated as no more than that.”
“The confusion arises in thinking that it is somehow possible to segment European law from domestic law when in fact the European Communities Act itself is domestic law, and the judges who are likely to adjudicate on the sovereignty of Parliament are our own domestic judges. It may well be an adjudication on a European case, or it may well be on another case, but unless the Minister addresses the potential challenge from the Supreme Court on whatever case, particularly under European Community law, he is not addressing the problem.”
“I am incredulous about this argument about the word “sovereignty”. Is my right hon. Friend seriously suggesting that if Parliament put into statute the fact that it was sovereign, that would be a come-on to the judges to come and get it? I think if he reflects on that for a short time, he will realise that he has been given a lawyer’s excuse for rejecting the amendment, not a proper reason.”
“I commend my hon. Friend for raising this matter on the Adjournment of the House. Does he agree that the concern is that Essex county council’s decision to withdraw funds will result in increased costs for the council? I assure him that the Public Administration Committee, which I chair, is examining this problem in general and is considering how the voluntary sector is affected by reductions in public spending of this nature.”
“May I say that I agree with the hon. Member for Birmingham, Edgbaston (Ms Stuart): it is extraordinary that we did not have a pre-Council debate. I also wish to press my right hon. Friend on the question raised by my hon. Friend the Member for West Worcestershire (Harriett Baldwin). The Prime Minister said that we will not have liability for the eurozone after 2013, and we very much hope that that is correct. However, the European stabilisation mechanism seems to be an open-ended liability. On 22 November, the Chancellor said: “we would certainly not be in favour of somehow replenishing it”. —[ Official Report , 22 November 2010; Vol. 519, c. 43.] Are we going to refuse to replenish the European stabilisation mechanism while it continues to exist?”
“I do not think that anybody wants to waste time on the timetable motion unless necessary, but if my hon. Friend were to provide an assurance that the Bill can and will be used only for a single bilateral loan to Ireland, and that it will not be used for any other purpose, that might help it on its way.”
“I wanted to intervene on my hon. Friend the Financial Secretary to ask for a further assurance. I am minded to support my hon. Friend the Member for Wellingborough (Mr Bone) by voting against this motion in the Lobby if there is a Division. However, I might refrain from doing so if my hon. Friend the Financial Secretary were to rise to his feet and assure me that the measures in the Bill could not be used to lend to Ireland through another international institution, such as the European Union. I would be grateful for that assurance.”
“When a country becomes over-indebted, it can either enslave itself to the debt or inflate and devalue. Is it not clear that the fundamental problem is that none of the countries in the euro can inflate and devalue to get out of their problems? That is why some Conservative Members are saying that it is only a matter of time before some of these countries fall out of the euro, and that we would be better off planning on that basis than pretending that we can hold back an unstoppable tide.”
“Does my hon. Friend share the concern that because we are taking part in the Irish bail-out on equal terms with the euro members, we are setting a precedent that will put political pressure on the Government to take part in other bail-outs? Does he believe that the Government will be in a position to resist that pressure?”
“The Minister is to be commended for coming to the House to make an oral statement on what was inevitably going to be a difficult announcement. Will he confirm that Harwich magistrates court was already earmarked for closure by the Labour Government? Can he also give me an assurance that Harwich will stay open until the new court facilities in Colchester have been constructed and are up and running?”
“In our manifesto we promised to amend the European Communities Act 1972, and the coalition agreement states: “We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty—a ‘referendum lock’.” But the Bill does not amend that Act.”
“The right hon. Lady really does not know what she is talking about. Let me refer her to the Law Lords’ judgment in the case of Jackson v . Attorney-General, in which Lord Steyn said: “The judges created this principle”— that is, the principle of parliamentary sovereignty. “If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism.” Lord Hope said: “Parliamentary sovereignty is no longer, if it ever was, absolute…Step by step, gradually but surely, the English principle of the absolute legislative sovereignty of Parliament which Dicey derived from Coke and Blackstone is being qualified.” There are therefore two Law Lords speculating about the future of parliamentary sovereignty. The right hon.”
“I do not think that the Foreign Office has fully understood the consequences of encouraging this to go ahead, which is what it did. I am afraid that a great many of us voted for it in this House. The European External Action Service is ordering much more expensive cars, is to have grander embassies and is to pay much higher salaries than our own diplomatic service. That will be to the detriment of our diplomatic service because it will attract the talent away from our service and towards the European External Action Service.”
“Will the hon. Lady forgive me for pointing out that if we had had the referendum on the Maastricht treaty, it is most unlikely that the European Union would be in the mess that it is in today?”
“Is not the real question, which those on the Government Front Bench must answer, why they will not put a declaratory clause, notwithstanding the European Communities Act, into the Bill. Are they saying that that itself would put us in breach of the European treaties? I submit that it would not. Should not they accept that by putting a “notwithstanding” clause into clause 18, they would, notwithstanding the European Communities Act, be reaffirming the supremacy of the House, which is long overdue?”
“Where is the evidence that the European Commission or the European Court of Justice accept that the EU is an increasingly intergovernmental organisation? I put it to my right hon. Friend that, actually, they insist on quite the reverse.”
“The Bill fails to address our national interests and it reflects the muddle that the Government have got themselves into because, as we have heard, the prime purpose of this Bill is political; it was designed to appease sentiment in the absence of a referendum on all the treaties where we should have had referendums: the Maastricht, Nice and Amsterdam treaties, as well as the Lisbon treaty. The Bill will fail to reassure people and will fail to address the increasing disconnect that people feel, not from the European Union, but from the governance of their own country by their own democratically elected representatives. Dealing with that is the real challenge that we face, because that is about despair about us in this place.”
“As the recent Public Administration Committee report says, what we need is a reassessment of our national interest with regard to our membership of the European Union. I do not advocate an “in or out” referendum, but I think that we need to start reassessing whether our current terms of membership are in our national interest and then to start working out how we should alter them to reflect our national interest. The problem with this Bill is that it neither addresses the democratic legitimacy—or the lack of it—in the current settlement, nor stops the flow of power to the European Union. As we are talking about democratic legitimacy, I should say that that flow takes power away from democracies and gives it to something else, because whatever the European Union is, it ain’t a democracy.”
“Friend the Member for Charnwood (Mr Dorrell), but as Professor Tomkins also said on the limitations of clause 18: “If this is the attempt by the UK Parliament to reassert or reclaim some kind of sovereignty in the face of the European competence creep, it ‘don’t do what it says on the tin.’” I am afraid that the Minister has to face that. In my last minute or two, let me move on to the second test of the Bill. Is it really in the national interest; does it address the national interest? I would regard the Bill as almost wholly irrelevant to the national interest. The hon. Member for Ilford South (Mike Gapes) pointed out that we should be talking about the rise of China and how we are going to do business with India. We really are contemplating our navels as we discuss this Bill.”
“It merely provides an historical account of what happened—that there was an Act of Parliament, which is how the European Union’s laws apply in this kingdom. It has no effect whatever. Let me cite the evidence given to the European Scrutiny Committee. Professor Adam Tomkins gave advice that was accepted by the all-party Select Committee. He said: “Neither clause 18 nor any other provision in the Bill safeguards the United Kingdom from the further development of EU law by the ECJ.” Now the ECJ, that really is power! How is this House going to regulate the power of the European Court to expand competence and reinterpret the competences of the European Union as it has done down the ages? Well, of course, it cannot. I was touched by the faith in the Bill expressed by my right hon.”
“The answer is that it does not affect it. It affects what might happen in future—we can argue about that, and some argue that it might have a greater effect than expected and that the courts might have to decide how much effect it will have—but it does not constitute a lock, as my hon. Friend the Member for Clacton (Mr Carswell) pointed out, because no Parliament can bind its successor. Whatever is in the Bill can be amended or repealed by a future Parliament. It is not really a lock, but it does not affect anything that has gone before. The sovereignty clause provides another case in point. In fact, despite the Government’s repeated reference to it as such, it is not a sovereignty cause. It does not contain the word “sovereignty” or “sovereign” and it does not use the words “supremacy” or “primacy”.”
“The crunch is that it all depends on what is meant by power. A child can have power over its parent, even though it does not have any sovereign or legislative authority. Power has a fluid quality to it: it cannot be held; it travels to people with influence. Power is clearly leeching away from our kingdom and this House, even though I believe that this House remains absolutely sovereign. The fact of power, where it is exercised, and the constraints that it makes people feel when it is exercised, is clearly having an effect. Two simple tests can be applied to the Bill. The Foreign Secretary himself says that the Lisbon settlement lacks democratic legitimacy, so we should ask ourselves whether this Bill adds to the democratic legitimacy of the settlement between the United Kingdom and the European Union.”
“The reason why they are not included is either that the Government have already made those transfers and do not want to admit that they should have been made more accountable to this House, or that they intend to make further transfers and do not want to get caught up in the potential for litigation. I would be grateful if my hon. Friend the Minister for Europe made it clear in his summing-up speech when he expects the provisions to come into force. My understanding is that whatever is in this Bill is not intended to apply to this Parliament, but to the next one. I see the Minister nodding. It would be a bit embarrassing to legislate for the next Parliament and create a trap for a future Government that the current Government would not accept for their own behaviour. I guess that that is why these lacunas exist.”
“No one, with the exception of a few aficionados, can have imagined what a mess the future Government were getting themselves into by making such an apparently simple pledge. As recently as 1 November, the Prime Minister told the House: “I would grant a referendum if there were any proposed transfer of powers from Westminster to Brussels.” —[ Official Report , 1 November 2010; Vol. 517, c. 625.] My hon. Friend the Member for Hertsmere (Mr Clappison) made an illuminating speech, pointing out that certain transfers of power are not included in the Bill.”
“I am bound to ask, as should we all, whether the scene that we observe in the Chamber today was really what my right hon. Friend the Foreign Secretary envisaged when he came up with the brilliant idea of a referendum lock at the Conservative conference in 2009. At that time, I think what he saw looming was the imminence of the ratification of the Lisbon treaty, and the difficulty of holding a referendum on a treaty that had already been ratified. He was looking for something to throw to the crowd, and his idea got a wonderful round of applause at the conference. Little can he have imagined, however, that that simple promise would give rise to a Bill of such byzantine complexity. It has not been universally welcomed in the Chamber, although, knowing the way in which this place works, I suspect that it will find its way into Committee.”
“As far as the term “business as usual” is concerned, I must ruefully reflect that it is business as usual in this House, as we are again discussing this interminable topic. It has occupied many thousands of hours of discussion since I was elected in 1992, and many thousands more before that. It is perhaps amusing and depressing to see how little some things change while the pace of European integration seems uninterrupted by whatever votes take place, whatever arguments occur and whatever crises erupt. The present crisis over the governance of the euro is a case in point. The architects of the Maastricht treaty, far from accepting that they have been proved wrong by events, are seizing on the chaos to strengthen the hold of the centre over the rest of Europe, accelerating the pace of integration as a result.”
“My hon. Friend is dealing carefully with the points that have been raised, but will he treat seriously the evidence given to the European Scrutiny Committee by Professor Tomkins? At the end of his written evidence, he stated: “If Parliament is of the view that its sovereignty requires to be freshly articulated and safeguarded in legislation, it would be well advised to proceed with great care and caution, lest the consequences of its actions come to be seen as the proverbial red rag to the bull.” I am not convinced that the clause, as drafted, would not be that red rag.”
“I apologise to the right hon. Gentleman for missing his opening remarks, but it was his subsequent remarks that I wanted to hear. Will the motion allow right hon. and hon. Members to make self-referrals, which we know the commissioner discourages?”