European Affairs

Joanna Cherry Excerpts

Thursday 25th February 2016 Commons Chamber

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

It is always very daunting to follow the hon. Member for North East Somerset (Mr Rees-Mogg). There has been much talk today about whether sovereignty is an illusion. I know that the notion of parliamentary sovereignty is one that many hon. Members for English constituencies hold dear. I want to address that issue of sovereignty, and to make a plea for respect for the different constitutional tradition in Scotland in relation to sovereignty.

After his statement on Monday, I asked the Prime Minister to confirm whether it was his intention to unveil a British sovereignty Bill in the next few days, as has been widely reported, and what provision he would make in the Bill to recognise that the principle of unlimited sovereignty of Parliament is a distinctively English principle that has no counterpart in Scottish constitutional law. He confirmed his view:

“We do have a sovereign Parliament…and I look forward to bringing forward some proposals in the coming days.”—[Official Report, 22 February 2016; Vol. 606, c. 53.]

We await his proposals with bated breath, but he did not address my comments about the difference between English and Scottish constitutional legal theory. I rather had the impression that he did not know what I was talking about. I do not mean that disrespectfully, because I am very well aware that he is a distinguished scholar with a first from Oxford, but I believe it is in PPE rather than in law.

Every lawyer with a Scots law degree knows that there is a tradition of the sovereignty of the people in Scotland. I know that that conflicts with the Diceyan tradition in England, but many distinguished Scottish jurists have put it on a very firm footing. They include Lord President Cooper in the well-known Scottish case of MacCormick v. the Lord Advocate in 1953 and, most recently, Lord Hope of Craighead in his dicta on a case about the Hunting Act 2004, Jackson v. the Attorney General. Lord Hope said that

“Parliamentary sovereignty is no longer, if it ever was, absolute… It is no longer right to say that its freedom to legislate admits of no qualification whatever. 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…The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based.”

[Sir William Cash]

May I refer the hon. and learned Lady to chapter 12 of “The Rule of Law” by the late Lord Justice Bingham, in which he severely criticises other members of the Supreme Court for taking what he would describe as a wrong view of the whole question of sovereignty?

[Joanna Cherry]

I am very well aware of Lord Bingham’s opinion of the views expressed in the Jackson case. I am not saying they are binding precedents—they are opinions. My point is that the opinion of Lord Hope of Craighead in Jackson and of Lord President Cooper in the 1953 case are very well founded in Scottish historical tradition.

We heard much in the Chamber last year about Magna Carta, which was signed at Runnymede in 1215. Arbroath is Scotland’s Runnymede, and Scotland’s Magna Carta is the Declaration of Arbroath. It recognised that the people, not Parliament, are sovereign in Scotland. That is the difference between Scottish and English constitutional law, which is of long standing, and I ask the Government to reflect that in their Bill on British sovereignty.

The Declaration of Arbroath was a letter, written by the nobility of Scotland to the Pope in 1320, that asserted the nationhood of Scotland, our right to independence and the right of the Scottish people to choose their King—the people’s sovereignty. Most importantly, the Declaration of Arbroath said that the independence of Scotland was the prerogative of the Scottish people, rather than the King of Scots, and that the nobility—at that time, the nobility were, for these purposes, the people of Scotland—would choose someone else to be king if Robert the Bruce proved unfit in maintaining Scotland’s independence. That last point has been interpreted by many scholars as an early expression of the notion of popular sovereignty—that Government is contractual and that kings can be chosen by the community, rather than by God alone. We find that notion of popular sovereignty in other modern democracies that consider themselves to be governed by the rule of law, rather than parliamentary sovereignty. Of course, law can have many sources.

[Alex Salmond]

Is it not also correct that the community of the realm passage, to which my hon. and learned Friend referred, has been cited in a Senate resolution as an inspiration for the American declaration of popular sovereignty, the declaration of independence?

--- Later in debate ---

[Joanna Cherry]

My right hon. Friend is quite correct. Many of the founding fathers of the American constitution were of Scots descent and therefore drew on the Declaration of Arbroath in framing it.

Anyone who doubts that there is a firm foundation for the notion that in Scotland the people are sovereign should look to the writings of the late Professor Neil MacCormick, who was regius professor emeritus of public law and the law of nature and nations at the University of Edinburgh. He was a distinguished Scottish nationalist and the son of the petitioner in the MacCormick case that I mentioned earlier, as well as being an internationally recognised jurist. Nobody could doubt his eminence in the field of public law and constitutional theory.

What I am asking for is respect when this Parliament comes to debate the Prime Minister’s Bill that deals with British sovereignty, if that is what we are going to have. I understand that many hon. Members from England hold Dicey’s doctrine of parliamentary sovereignty very dear and I am aware that it can be traced back to Tudor times and beyond. I am sure that they will be keen to preserve it, insofar as it has not suffered many knocks already.

However, we were told repeatedly during the Scottish independence referendum that Scotland was an equal partner in the Union. Therefore, I am sure that hon. Members from England, including the Prime Minister and the Government, will wish to accord the Scottish doctrine of the sovereignty of the people of Scotland equal respect. When our two Parliaments united in 1707, it was not the case that the English Parliament somehow swallowed whole the Scottish Parliament. It was a Union of two Parliaments. Therefore, it is not logical to say that the English notion of the doctrine of the sovereignty of Parliament should reign supreme, and that the Scottish notion of the doctrine of the sovereignty of the people should be ignored.

In fact, it is often said that the advocates of parliamentary sovereignty are defending a doctrine that not even the higher English judiciary believe in any more. It is interesting to observe—I am very indebted to my friend, Lord Lester of Herne Hill, for drawing this to my attention—that Dicey himself, in his ardent opposition to Irish home rule, was prepared to depart from his doctrine of parliamentary sovereignty. In 1913, Dicey contended that if Asquith’s Home Rule Bill was enacted by this Parliament, it

“would have no constitutional validity as a law”

and that

“it would be justifiable for the Ulster Unionists to resort to rebellion, if necessary, to prevent Irish Home Rule”.

If any hon. Members are interested in the reference for that, I can give it to them later. So even Dicey himself was prepared to depart from the notion that the English Parliament was wholly sovereign.

If the doctrine of parliamentary supremacy is compromised in English law, even by its greatest exponent, there is all the more reason for the UK Government to recognise that it has no counterpart in Scotland, to tread carefully when they bring forward their British sovereignty Bill and to accord some respect to the different notions of sovereignty across these islands.