Leaving the EU

Joanna Cherry Excerpts

Monday 26th November 2018 Commons Chamber

[The Prime Minister]

I can assure my hon. Friend that I have not forgotten the House of Lords report, but there is a different opinion, which is that there are legal obligations that this country would hold to the European Union in relation to financial payments in any circumstances. As I have said before, I think that it is important that this country upholds our legal obligations.

[Joanna Cherry (Edinburgh South West) (SNP)]

Tomorrow I will be part of a cross-party group of Scottish parliamentarians, from the Scottish National party, the Labour party and the Scottish Green party, who are going to the Court of Justice in Luxembourg to establish that it would be possible for this Parliament to tell the Prime Minister to revoke her article 50 notice. Does she share my sense of pride that it will be Scottish parliamentarians and the Scottish courts who will give this Parliament a true alternative to her deeply flawed deal?

[The Prime Minister]

I know that the hon. and learned Lady has consistently raised the issue of the revocation of the article 50 notice. As she knows, it is not going to happen, because it is not Government policy.

EU Exit Negotiations

Joanna Cherry Excerpts

Thursday 15th November 2018 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

Articles 14, 87, 89, 158 and 174 of this agreement mean that the jurisdiction of the European Court of Justice will continue to reign supreme across the UK, for four years after the transition period in some respects, for eight years after the transition period in other respects and indefinitely in the case of Northern Ireland. In what respects has the Prime Minister’s red line on the European Court of Justice survived this agreement?

[The Prime Minister]

I was very clear when we brought back the agreement in the December 2017 joint report that, in relation to citizens’ rights for example, there would continue to be an ability for the interpretation of the European Court of Justice in relation to European Union law on those rights to be considered for a period of time beyond the end of the transition period and that it would then cease.

It is not the case that Northern Ireland will be indefinitely under the jurisdiction of the European Court of Justice. The future relationship that we are negotiating with the European Union will ensure that the United Kingdom is removed from the jurisdiction of the European Court of Justice. If the hon. and learned Lady looks at the proposed governance arrangements, she will see that we are very clear that the court of one party cannot determine matters in relation to another party.

EU Withdrawal Agreement: Legal Advice

Joanna Cherry Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Lidington]

My right hon. and learned Friend is spot on. The Law Officers’ advice goes beyond other forms of legal advice in its particular complexity, sensitivity and constitutional importance. For that reason, there is a high premium—higher even than that in respect of other forms of legal advice—on protecting that advice.

The Law Officers convention is also a facet of the important constitutional convention of collective Cabinet responsibility. Again, the ministerial code is clear on this. It says that all members of the Cabinet must publicly support collective decisions, but are able within Cabinet to debate and raise concerns privately, and the Law Officers’ contributions to those Cabinet discussions and decisions should similarly be protected, just as the contributions of other Cabinet Ministers or the minutes of Cabinet meetings themselves are protected. That ensures that the public debate is about the Government’s collective decision and the Government’s accountability to this House, rather than about internal processes.

Where the right hon. and learned Member for Holborn and St Pancras was correct was to say that, in the case of the Iraq war and Lord Goldsmith’s advice, an exception was made to this general rule. It is certainly the only one of that nature in modern times that I have been able to find so far. However, it was done some years—two years—after the event, following the appearance in the media of selected verbatim extracts from the advice. However, the key difference between that case and what we are debating this afternoon is that, in the Iraq case, the point at issue was not the legal implications of particular policy options, but whether the Government’s entire action in Iraq was or was not lawful. That was the point at issue then, which is why the then Government decided that it was right for them to make an exception to what is normally a very firm convention.

I believe that, if this convention were to be set aside, there would be an adverse impact on the quality of discussions within Government and of the Government’s collective decision making, which would not be in the interests of any Government of any political party. Whether by means of resolutions of the House or otherwise, if Law Officer advice is made public, future advice is likely to be less frank and candid than at present and less likely to be written down. That is not going to make for good government.

[Joanna Cherry (Edinburgh South West) (SNP)]

Is there not another aspect to this? A number of the Minister’s Cabinet colleagues have said that they did not properly understand the legal implications of what was agreed to last December. That is of course what has led to the dilemma in which the Government now find themselves about the backstop. If the Cabinet were not able to understand the legal advice last December, surely that means they will not understand it this time round and it is important that this House, which will take the ultimate decision, fully understands the legal implications of what is about to be agreed to, if indeed there is going to be an agreement.

[Mr Lidington]

I go along with the hon. and learned Lady this far: I have set out how the Government intend to discharge the commitment that we have given to making sure that Members in all parts of the House are fully informed and do understand the nature of the legal, as well as the economic and political, implications of the decision that we are facing. However, at no time in our Parliament’s history has any Government operated in an environment where legal advice is prepared for Ministers one week and then made public the next.

I have to be clear that this motion does go against the Law Officers convention, which Governments of all colours have defended. I hope, therefore, that, during this debate, the right hon. and learned Member for Holborn and St Pancras and his colleagues will reflect on the assurances I have sought to give to the House this afternoon; will take them in the spirit in which I, on behalf of the Government, certainly intend them; and will, having reflected on these matters, decide not to press their motion to a Division, but to go forward in a spirit of cross-party consensus, so that we can work out together how to present to the entire House the information and analysis that Members on all sides rightly expect to have available in order to make an informed decision on a political issue of this historic importance.

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[Vicky Ford (Chelmsford) (Con)]

It is an honour to speak in this debate. It is also quite challenging, because we have heard from a number of people with deep legal experience, many of whom are hon. and learned Friends, and I am not a lawyer. However, I speak as someone who has a vast amount of negotiating experience. I spent eight years in the European Parliament leading international negotiations—in fact, I participated in more European negotiations than any other Member of that Parliament at that time—on top of 15 years of commercial negotiations, many of which were also international.

As a negotiator, I know how important it is to be able to seek legal advice as one goes along, not just on the final deal but on the deal as it develops. Because of that legal advice, we sometimes change our strategy, and the nuances can have an impact on the final deal. As a negotiator, I know it is important to be able to play our cards close to our chest. Sometimes, if we are forced to disclose our position too early, it can tie us down and remove negotiating options.

It is therefore extremely important that we do not force those on our side of the negotiating table to disclose issues that those on the other side are not having to disclose. These are the most complex negotiations for a generation, and I personally think it is deeply impressive that all parties are still talking to one another, given how complicated the negotiations are. We should not force one side to disclose what the other side does not have to disclose.

The second reason that I am concerned about the motion is that I have spoken to lawyers about the precedent that this could set in other situations. Many Members of Parliament are lawyers, and we know that people go to lawyers for advice on all sorts of things—family law, property law—and that they do that in confidence. It is really important that that confidence should not be broken. We should not force a lawyer to breach that confidence, because that would set an incredibly difficult precedent for other areas.

[Joanna Cherry]

Is the hon. Lady aware that the privilege attaches to the client and not to the lawyer? It is for the client to decide whether to waive the privilege. We are not asking the lawyer to waive the privilege; we are asking the Government—the client—to do so. That is a crucial distinction.

[Vicky Ford]

Let me take this further, and move on to the issue of transparency. I believe that transparency is enormously important, and it is important that all Members should understand the full legal ramifications of the deal that is negotiated before we hold our vote. After all, the relationship between the EU and the UK is vital to all of us, and there are highly sensitive areas involved, especially for Northern Ireland, a place that is dear to my heart. That is why it has been extremely helpful that the Government have today clarified that, before we vote, there will be a full and reasoned position on the legal situation and especially on the impact for the Good Friday agreement and the commitments to Northern Ireland. That is absolutely right. Furthermore, I am pretty convinced that before we get a vote, every other QC in the country will have emailed each of our inboxes, and that the noble Law Lords down in the other place will have given their most eminent thoughts throughout the night, which we will be able to read in Hansard. I have no doubt that we will have a vast amount of legal opinion at our fingertips.

Although I support the call for transparency, the final reason that I will not vote for the motion today is that it is incredibly uncertain and unclear. In my experience of international negotiations, and indeed all negotiations, the devil is in the detail. British negotiators have a strong reputation for getting the detail right. I thank the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for clarifying some of the issues in the motion during his speech, but there are at least four uncertain areas in it. First, is the motion calling only for the final legal advice, or for “any legal advice”, as it states? Secondly, is it calling for the advice on the final withdrawal agreement, as some people have suggested, or for the advice on the “proposed withdrawal agreement”, which is what it says in the motion? If it is the latter, that would include all the advice given during the negotiations. That is what the motion is asking for, and it is important that we should keep our reputation for detail strong.

The third failure in the motion is that it is unclear whether it is calling for all the papers to be “laid before Parliament”, which is what it says, or for them to be made available to MPs, which is what I have heard the Opposition say they would now accept. That would be similar to the process by which we were able to access the impact assessments.

The fourth problem I have with the motion is that it is not clear when the advice would need to be made public. Would it be during the negotiations, or now, or after the negotiations have been finalised? I believe that the Opposition spokesman tried to clarify those points from the Dispatch Box, but that is not good enough. This is a serious vote on a serious issue relating to the most crucial negotiations of our lifetime, and this type of motion is simply not good enough.

--- Later in debate ---

[Joanna Cherry (Edinburgh South West) (SNP)]

It is always a pleasure to follow the hon. Member for Witney (Robert Courts), who speaks eloquently and courteously, as always, although I disagree with him on this occasion. I rise to support the Labour party’s motion. In doing so, I declare an interest. Like many who have spoken in this debate, I have previously acted as a Government lawyer. I was a standing junior counsel to the Scottish Executive—as they used to be known before my colleagues came to power and changed the name to the Scottish Government, and quite right, too—and have acted as Crown counsel and one of the Lord Advocate’s deputies.

I understand the particular concern that Government lawyers have, but I have also acted for members of the public. I know there is a balance to be struck and that the interests of the Government are not always synonymous with the public interest. In this particular case, I do not think the interests of the Government are synonymous with the public interest.

My hon. Friend the Member for Glenrothes (Peter Grant) has already referred to the difference between the ministerial code in the United Kingdom and the ministerial code in Scotland on the disclosure of legal advice. The UK Cabinet Office ministerial code says:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

That is an important qualification, and I will come back to what “Erskine May” says in a second.

By contrast, the ministerial code in Scotland has a section about exceptions to the convention of not disclosing legal advice:

“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”

The ministerial code in Scotland envisages that there can be disclosure in exceptional circumstances. Having regard to what “Erskine May” says, and having regard to some of the precedents we have discussed today, I would suggest that that, in effect, is what is recognised by this House. “Erskine May” says that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence…and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding.”

“Erskine May” recognises that the UK Government can make the sort of exception that the Scottish Government are entitled to make in exceptional circumstances, and some historical precedents have already been mentioned today.

What I am saying is that these are exceptional circumstances. Again, as my hon. Friend the Member for Glenrothes said, another parliamentary convention has already been ridden over roughshod in relation to Brexit. The Sewel convention states that normally the Scottish Government should be consulted. The Government have said this is not a normal situation, and they may well be right. Of course, there is great legal debate about what “normally” means in the Sewel convention but, by the Government’s position, we are not in normal times. No, we are in exceptional times. Even if there were no precedent—and there are precedents—it would be appropriate for the Government to publish their legal advice on the finalised deal, if there is one, in full.

In this event, very unusually, I find myself in agreement with DUP Members. The people of Northern Ireland have a right to know this advice in full, as do the people of Scotland, England and Wales. It is this House that will make the decision on whether or not to accept that final agreement, not the Government. They are in danger of mixing up the functions of the Executive and the legislature in relation to Brexit.

Reference has been made to the case in which I am a petitioner, and which is going to the European Court of Justice, on the question of the unilateral revocability of article 50. The Government have fought that case tooth and nail, because they say it is up to them whether or not to revoke article 50, but the highest court, Scotland’s supreme court, has said, “No, it is up to this Parliament.” Just as it will be up to this Parliament whether to revoke article 50, it is up to this Parliament whether or not to accept the deal, so this Parliament should be given the advice that the Cabinet has been given. That is why I cannot agree to the compromise put forward by the Government Front Bencher, because it is a matter of trust now. As has been said by the hon. Member for Pontypridd (Owen Smith), the referendum in 2016 was won on the back of what we now know to have been some lies, some misinformation and, in some cases, breaches of electoral law. Unlike in the Scottish independence referendum, there was no prospectus as to what Brexit would look like. People have lost trust in the process. If trust is to be won back, this Parliament and indeed the people must be fully informed about the deal that is reached before the final decision is made to endorse the deal.

Legal privilege can be waived by the client, and that is what we are asking the Government to do. In the public interest, in these exceptional circumstances, we are asking them to waive that privilege. I am conscious that I have less than a minute left, but on the compromise offered from the Government Front Bench, I have three specific questions I would like the Solicitor General to answer. First, will what the Government are offering be made available to the devolved Governments? Secondly, how much detail will be in the legal advice that they are going to put forward—will it be sufficient for those of us who are going to be looking at it carefully to take an alternative opinion on it? Thirdly, if the Attorney General is going to come to this House to answer questions on it, will he give answers that are meaningful? Ministers so often do not give us a meaningful answer. In addition, will the Government allow a reasonable amount of time to elapse between the provision of their written document and the oral statement, so that the written document can be studied in order that properly informed questions may be asked?

October EU Council

Joanna Cherry Excerpts

Monday 22nd October 2018 Commons Chamber

[The Prime Minister]

I know that this is an issue that my hon. Friend has campaigned on in particular. I am very happy to reassure him that it is this Conservative Government who will guarantee the rights of EU citizens, deal or no deal.

[Joanna Cherry (Edinburgh South West) (SNP)]

On the question of a second referendum, given where we are now, and given the promises that were made by the Leave campaign, does it not bother the Prime Minister at all that many of those who voted to leave in 2016 did so on a false prospectus?

[The Prime Minister]

The referendum was held and there were lively and passionate campaigns on both sides of the argument. We gave the people the decision. The people took their decision. We should now deliver on it.

EU Exit Negotiations

Joanna Cherry Excerpts

Monday 15th October 2018 Commons Chamber

[The Prime Minister]

There are arrangements in relation to customs checks that would be put in place were it not the case that we had come to an agreement to have a customs arrangement that did not require those checks to take place. I have seen and have heard of a number of proposals for technical solutions to deal with those issues. I have to say to my right hon. Friend that some of those technical solutions effectively involve moving the border—and it would still be a border. Some involve equipment, which could come under attack, and some involve a degree of state surveillance that, frankly, I think would not be acceptable in Northern Ireland.

[Joanna Cherry (Edinburgh South West) (SNP)]

It is reported today that the Prime Minister wants the meaningful vote to take place on 27 November. The 27 November is the same day that the European Court of Justice will hear the Scottish Court’s referral on the question of whether article 50 can be unilaterally revoked. My question for the Prime Minister is, is she afraid of MPs knowing the answer to that question before we have the meaningful vote?

Oral Answers to Questions

Joanna Cherry Excerpts

Wednesday 10th October 2018 Commons Chamber

The Prime Minister was asked—

[Joanna Cherry (Edinburgh South West) (SNP)]

Q1. If she will list her official engagements for Wednesday 10 October.

[The Prime Minister (Mrs Theresa May)]

Immediately after Prime Minister’s questions I, along with other Members of the House, will watch a parade by 120 members of the British Army to Parliament. They represent the breadth of the 50,000 regular and reserve Army personnel. This is an opportunity for us to thank them for their tireless work to keep our country safe.

This afternoon, I will host a reception for World Mental Health Day. I am delighted that this week the UK hosted the first ever global ministerial summit on mental health, with a landmark agreement to achieve equity for mental health.

This morning, I had meetings with ministerial colleagues and others. In addition to my duties in the House I shall have further such meetings later today.

[Joanna Cherry]

The Polish community has long made a valuable contribution to Scottish society. My Polish constituent is a young man who has lived in Scotland since he was six, but when he applied for jobseeker’s allowance last month, he failed the habitual residence test. Even the Department for Work and Pensions cannot understand the Kafkaesque letter that he has been sent. Like the Windrush scandal, is this the shape of things to come for EU citizens in the United Kingdom?

[The Prime Minister]

As the hon. and learned Lady knows, as part of the negotiations with the European Union we have already come to agreements about the rights that will be available to those EU citizens who are already living in the United Kingdom. We have set out very clearly what will be the situation for those who come to the United Kingdom during the implementation period. I was able to update people a few weeks ago to make it clear that in a no-deal arrangement we will also ensure that we look after those EU citizens who have come and made their home here. As for the individual case, I am sure that the Department for Work and Pensions will look into that in some detail.

Oral Answers to Questions

Joanna Cherry Excerpts

Wednesday 11th July 2018 Commons Chamber

[Angela Crawley (Lanark and Hamilton East) (SNP)]

2. What recent discussions he has had with the (a) Scottish Government and (b) Prime Minister on the Scottish Parliament’s decision not to grant a legislative consent motion for the European Union (Withdrawal) Act 2018.

[Joanna Cherry (Edinburgh South West) (SNP)]

9. What recent discussions he has had with the (a) Scottish Government and (b) Prime Minister on the Scottish Parliament’s decision not to grant a legislative consent motion for the European Union (Withdrawal) Act 2018.

[Hannah Bardell (Livingston) (SNP)]

10. What recent discussions he has had with the (a) Scottish Government and (b) Prime Minister on the Scottish Parliament’s decision not to grant a legislative consent motion for the European Union (Withdrawal) Act 2018.

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[David Mundell]

The hon. Lady is conflating a number of issues, but what I can confirm to her is, as I discussed with Mr Russell last Thursday, that the Scottish Government produced a very complete document with their views to be fed into that meeting of the Cabinet, and I fed them in.

[Joanna Cherry]

That was a bit of a disappointing answer, so may I probe a bit further? The Prime Minister’s Chequers agreement rides roughshod over the Scottish Parliament. Scotland’s economy is heavily reliant on services. Thousands of my constituents work in that sector, yet she is determined to make a deal in which services are taken out. Has the Secretary of State worked out the impact of the Prime Minister’s decision on the Scottish economy yet, and what is he going to do about it?

[David Mundell]

At the heart of the issue is a fact in the Scottish Government’s document that this Government could not accept—the Scottish National party Scottish Government do not want to leave the European Union. The Prime Minister is focused on leaving the EU on a basis that not only does the best for British business, but respects the outcome of a referendum across the whole of the UK.

Leaving the EU: Negotiations

Joanna Cherry Excerpts

Tuesday 10th July 2018 Commons Chamber

[Stephen Gethins]

Thank you, Mr Deputy Speaker.

Brexiteers have had their whole careers to prepare, and then the former Ministers whom I have just mentioned had two years in the highest offices of state, with every resource of the UK Government at their disposal, to build on their years and years of so-called preparation, yet we are left in this complete mess. I do not blame the Minister present entirely for it, and indeed I do not blame the Prime Minister entirely, but those Brexiteers who got us into this mess and have done absolutely nothing to get us out of it again have shown gross irresponsibility and negligence. They bear huge responsibility for the situation in which we have been left. This is serious stuff.

I was very disappointed by the contribution of the shadow Minister, the hon. Member for Darlington (Jenny Chapman), whom I respect enormously. There is no such thing as a “jobs-first Brexit.” Every single scenario that has been set out shows jobs being lost. Even the compromise we have put forward of staying in the single market and customs union is the least worst—not the best—option. I am sorry to say that if only the Labour party would step up to the mark, we would not be in the mess we are in today. Therefore, I say with great respect to Labour Members that Labour needs to step up to the plate a little more, because the UK as a whole finds itself in the most extraordinarily difficult situation. [Interruption.] I will happily give way to the shadow Minister if she has a point to make about a jobs-first Brexit. [Interruption.] No, I did not think so.

To throw some light on this matter, Rabobank has said that this situation could cost the UK economy £400 billion. The Fraser of Allander Institute says it could cost 80,000 jobs in Scotland alone and cost Scotland’s economy £12.7 billion, and the head of that respected economic think-tank said that it had only done the work for Scotland but, looking elsewhere, it would be even worse for other parts of the UK. It is startling that the Scottish Government did economic analysis and published it and those of us who have seen it know that although the Scottish and UK Governments might not agree on much in this process, their economic analysis agrees entirely on the devastation that will be wrought by this Government if they see through their plans. This must be one of the first times in history when a Government are actively, and proactively, pursuing a policy that they know will cost tens of thousands, if not hundreds of thousands, of jobs.

[Joanna Cherry (Edinburgh South West) (SNP)]

My hon. Friend will recall that the UK Government’s modelling showed a hit to GDP in the long term of minus 1.6% if we stayed in the European economic area. Does he agree that under the Chequers agreement, which takes services out of the mix, that hit will be considerably greater, particularly in terms of the jobs Labour is promising us from Brexit?

[Stephen Gethins]

My hon. and learned Friend makes an excellent point, and she is well aware from the work she has done representing financial services in her constituency of the difficulties and job losses from the Government’s plans.

I find it extraordinary that we have a Government who are proactively pursuing a policy that they know will cost jobs, and they know will hit our GDP and our public services, because if GDP is hit there will not be the tax-take to provide the support for public services in the future. That will be devastating. I know that the Minister tries his best and is a very honourable man, but it must be extremely hard for Ministers to be pursuing this policy, and I urge them to think again about the damage they are doing to the economy and elsewhere.

We have a need for EU nationals. They should have been given a huge amount of certainty. EU nationals contribute so much to our public services and our companies, and contribute to this place and beyond—

Leaving the EU

Joanna Cherry Excerpts

Monday 9th July 2018 Commons Chamber

[Joanna Cherry (Edinburgh South West) (SNP)]

The Prime Minister says that under her plan, we will not be subject to the jurisdiction of the Court of Justice, but the Chequers statement says that our courts will pay due regard to its case law and make joint references for rulings, which presumably will be binding. The big difference is that after 29 March, there will be no Scottish and no English judge on the Court of Justice. Will that not be the very definition of being subject to the jurisdiction of a foreign court that her Brexiteers so opposed?

[The Prime Minister]

No, and I understand that the Chancellor of the Duchy of Lancaster has already commented on this issue in response to a question that the hon. and learned Lady asked in another meeting. We will not be under the jurisdiction of the European Court of Justice. That is one of the things that people voted for and that we will deliver.

June European Council

Joanna Cherry Excerpts

Monday 2nd July 2018 Commons Chamber

[Mr Speaker]

As the hon. Member for Ribble Valley (Mr Evans) has just referred to cherries, it seems timely for me to call Joanna Cherry.

[Joanna Cherry (Edinburgh South West) (SNP)]

Thank you, Mr Speaker. This is, from my point of view, one occasion on which cherry-picking is in order.

We are advised that the EU27 are so united in their approach to Brexit that they spent only 10 minutes discussing it last week. Can the Prime Minister give us an estimate of how long she thinks the members of her Cabinet will spend discussing matters next Friday at Chequers before they reach agreement on Brexit?

[The Prime Minister]

The Cabinet will meet, and the Cabinet will reach an agreement on this important matter, which is in our national interest.