Points of Order

Joanna Cherry Excerpts

Thursday 25th February 2016 Commons Chamber

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

On a point of order, Mr Speaker. I seek your assistance in relation to a matter that is of some concern to me. It has been brought to my attention that on Monday, outwith my presence and without notifying me in advance, the hon. Member for South Leicestershire (Alberto Costa) raised what he described as a point of order, during which he said that I had misled the House. I should make it clear that, notwithstanding his conduct, I have afforded him the courtesy of notifying him that I would be raising this point of order today.

On Monday afternoon I asked the Prime Minister what provision he would make in a British sovereignty Bill to recognise that the principle of the unlimited sovereignty of Parliament is a distinctively English principle that has no counterpart in Scottish constitutional law. In the last part of my question I quoted directly the words of a distinguished and now deceased Scottish judge, Lord President Cooper, in the well-known Session case of MacCormick v. Lord Advocate in 1953. The judge’s comments were obiter dicta—that is to say, an expression of opinion not essential to the decision—and therefore not legally binding as a precedent. However, they were an expression of his learned opinion and have been given due weight in the years since. Other distinguished Scottish jurists hold that view. As recently as 2005, in litigation concerning the Hunting Act 2004, Jackson v. Attorney General, Lord Hope of Craighead said in the House of Lords that parliamentary sovereignty is an English principle that Dicey derived from Coke and Blackstone.

It is perfectly in order for the hon. Member for South Leicestershire to disagree with me, particularly if he can vouch his position, but it is not in order for him to say that I have misled the House, especially when I had taken trouble to use my words carefully and was quoting a well-known dictum from Scots law. As you will be aware, Mr Speaker, it is a matter of particular concern to me, given my professional background, that I should not be represented as having misled the House. I am keen to have your assistance in how the record might be put straight.

[Mr Speaker]

I am extremely grateful to the hon. and learned Lady for notice of her point of order, of which, as she has informed the House, she has notified the hon. Member for South Leicestershire (Alberto Costa). By the way, for the avoidance of doubt, I have to decide what is and is not in order; that is simply the constitutional position. I confirm that Members should indeed inform a colleague of an intention to refer to him or her. The point of order raised on Monday by the hon. Member for South Leicestershire was—I think I can so describe it—moderately orderly in form, although, as I noted, it was not orderly in content, and for one quite simple and straightforward reason: it was not a point of order. As a mere politics graduate, I do not intend to adjudicate between two learned Members—I know that the hon. and learned Lady is a distinguished QC—on obiter dicta by senior judicial figures, or to give a view from the Chair on Dicey. The hon. and learned Lady has made her point with characteristic force and eloquence. May I suggest that we leave it there?