Principles of Democracy and the Rights of the Electorate

Joanna Cherry Excerpts

Thursday 26th September 2019 Commons Chamber

[Oliver Dowden]

The hon. Gentleman has made an excellent point. As I was about to say, I supported remain during the referendum campaign, but from the early hours of the morning, when we received the result, I was completely clear about the fact that my job, as a Member of Parliament, and the job of the Government was to deliver on it, and that is exactly what we should be doing.

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

May I return the Minister to the subject of EU citizens? When I am out campaigning in the streets of Edinburgh South West in a British general election, EU citizens often come up to me and ask why they are allowed to vote in a Scottish parliamentary election but not in a British general election. Given that EU citizens make a net contribution to the British economy, what possible justification is there for not allowing them to vote for the Government of the whole United Kingdom rather than just the Government of Scotland?

[Oliver Dowden]

It is generally the case that there are not reciprocal voting rights, and our position aligns with that of virtually every other European state in that regard, so I do not think we are outriders in the way that the hon. and learned Lady suggests.

People were surprised that we actually delivered on that referendum. We were not the only ones to support holding it. In the Lobby, we won by 544 votes to 53 to give people a say, which is 10:1. Indeed, seven of the eight Liberal Democrat MPs voted for it. That was quite a strong showing, really, for a party that now says that the outcome of the referendum does not count. After we voted for the referendum, we went to the public and made our case. Did any of us make the argument then, as is now being advanced by some, that the referendum was merely advisory? No, we were absolutely clear that this was in or out, remain or leave. Every vote was equal, every vote would count, and whatever the outcome, we would respect it: no caveats, no small print.

As I said to the hon. Member for Blackley and Broughton, I supported remain in the campaign but—do you know what—I accepted immediately that we had lost. The British people took a different view, and that was their right. From the moment that result was declared I accepted it, because one thing I believe passionately is that politicians do not get to choose which votes to respect. When we ask the public for an answer and they give us one, we should simply get on and deliver it, even if it was not the result that was desired. The House seemed overwhelmingly to accept this, and it invoked article 50 with very little dissent. Immediately afterwards, we had an election in which 80% of the people voted for parties whose manifestos explicitly supported the United Kingdom leaving the EU. This represented a second democratic event relating to our membership of the European Union and a second mandate from the British people to leave.

--- Later in debate ---

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

If the worst thing the Irish could say of the European Union is that it made them vote twice, I can imagine they have a lot worse things to say about their relationship and their union with England.

This week, we had a sterling reminder from the United Kingdom Supreme Court that in the UK we live in a constitutional democracy with checks and balances on Executive power. We were also reminded that so long as Scotland remains part of this Union, Scots law and the Scottish judiciary are deserving of respect—because let us not forget that the 11 UK Supreme Court justices followed the unanimous decision of the three judges in Scotland’s highest court, the Inner House of the Court of Session. In Scotland, our democratic and constitutional tradition goes back to the Declaration of Arbroath in 1320, which we will be celebrating 700 years of next year, and the Claim of Right in 1689. The principle of those documents is that neither the sovereign nor the Government is above the law. It was very refreshing to hear Lady Hale remind us that the same has been the position in England since at least 1611 when she said in her statement on Tuesday:

“As long ago as 1611, the court held that ‘the King (who was then the government) hath no prerogative but that which the law of the land allows him’.”

So constitutional democracy means not a tyranny by the Executive but parliamentary democracy with checks and balances. As Lord Drummond Young said in Scotland’s highest court:

“The courts cannot subject the actings of the executive to political scrutiny, but they can and should ensure that the body charged with performing that task, Parliament, is able to do so.”

I do not think that anyone on these Benches will take any lectures from members of the Conservative and Unionist party about the importance of democracy when it was their leader who tried to shut down parliamentary democracy for five weeks at a time of constitutional crisis in the UK.

Lady Hale stressed that there are two—[Interruption.] I am happy to take an intervention if the right hon. Member for North Shropshire (Mr Paterson) wants to make one.

[Mr Owen Paterson (North Shropshire) (Con)]

I am grateful to the hon. and learned Lady for offering me the chance to intervene. The point I would make is that we have had this huge national drama over the past couple of weeks as to whether the Prorogation will be ended, because so many Members of Parliament were so extremely zealous to attend and to address the issue of Brexit. But if we look at the Opposition Benches, there are almost as many SNP Members here as Labour Members—that is it—and there are only four of them.

[Joanna Cherry]

Perhaps if the Government brought some proper business forward, there would be more people here.

I want to return to what Lady Hale said. The judgment of the Supreme Court this week was not very complicated. Many Government Members suggested yesterday that it made new law—it did not. Lady Hale was simply expressing a principle that goes far back in the Scottish constitutional tradition and also in the English tradition that the Government are not above the law. She stressed two principles of our democracy: parliamentary sovereignty and parliamentary accountability. The Executive must be accountable to Parliament. It puzzles me that so many parliamentarians thought this was a novel statement of the British constitution, but that is perhaps because of the lack of a written constitution in the United Kingdom.

Many Members in this House—particularly those on the Opposition Benches—will be familiar with the writings of Justice Albie Sachs of the South African Supreme Court, a great jurist and freedom fighter. When he sat down to write the constitution of the new South Africa, he was shocked to find that Britain, which he was looking to for guidance, did not have a written constitution. One of the things that the Brexit crisis and the horror with which the UK Supreme Court judgment has been greeted by some illustrates is the need for the United Kingdom to have a written constitution. But I am afraid to say that I will not be holding my breath for constitutional reform in the United Kingdom. The Scots are very familiar with the oft mentioned promise of federalism whenever Scotland looks close to voting for independence. Gordon Brown is normally wheeled out to promise federalism, but there is never any appetite in this House to make that a reality.

There are many things that could be done to improve British democracy, but the horrified reaction to the checks and balances imposed by the United Kingdom Supreme Court last week shows me that Government Members do not actually understand their own constitution and would probably find it very hard to write it down. Brexit has thrown the constitution of the United Kingdom into crisis. In 2014, during the Scottish independence referendum, which was a great deal more civilised affair than the EU referendum—[Interruption.] Well, nobody lost their life during the Scottish independence referendum.

[Luke Graham (Ochil and South Perthshire) (Con)]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, I will not give way. The Scottish Conservatives—and sometimes, I am afraid to say, the Scottish Labour party, but in fairness, not the English Labour party—often like to peddle the myth that the Scottish independence referendum was a violent affair. It was not. I was there. It was a celebration of democracy, and I am pleased to say that nobody lost their life.

I return to the Brexit process. It has thrown the UK constitution into crisis because although there are four constituent parts of this Union, two out of the four of them voted remain, and that has been wholly ignored. That could never happen in the European Union. If the European Union was taking a decision as momentous as Brexit, even a small country the size of Ireland, Scotland or Malta would have a veto.

The reason why this is important is that while the Unionist parties were participating in the festival of democracy that was the 2014 independence referendum, they promised people in Scotland that we were an equal partner in the Union and that the way to retain our EU citizenship was to vote to remain part of the UK. Both those promises have been broken. The Scottish Parliament has come under attack, and constitutional conventions such as the Sewel convention that were put on a statutory footing have had a carriage and horses driven through them.

The result of all that is that a YouGov poll published earlier this month showed that the majority of Scots want a second vote on independence. Of course, the last time Scotland voted for Members of the Scottish Parliament, it elected a majority of MSPs who want a second independence referendum, and the last time Scotland voted for MPs in this House, it elected a majority of MPs who want a second independence referendum. What is sauce for the goose is sauce for the gander. Many Conservative Members—in particular the right hon. Members for Haltemprice and Howden (Mr Davis) and for Maidenhead (Mrs May) and the Attorney General have said in public, “You cannot keep a country in a union against its will.” Of course, they were talking about England and the European Union. It is going to prove impossible in the long term to keep Scotland in this Union against its will, and if democracy means anything it means recognising the mandate that exists in Scotland for a second independence referendum and granting the Scots a second independence referendum, because that is what the majority want.