Prorogation (Disclosure of Communications)

Joanna Cherry Excerpts

Monday 9th September 2019 Commons Chamber

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

I rise to state the Scottish National party’s unequivocal support for this application and to congratulate the right hon. and learned Member for Beaconsfield (Mr Grieve) on obtaining this debate. Unlike the hon. Member for Redditch (Rachel Maclean), I am going to confine myself to the terms of the motion, but I wish gently to remind her that this motion is supported by Members from across the House, some of whom, like her, have constituencies that voted leave and some of whom, like me, have constituencies that voted remain. The will of the people in Scotland is to remain, so I have no shame in having that as my primary motivation. Having said that, I am also very concerned to ensure, for as long as I and my colleagues are here, that this Parliament and this Government do things properly, and there are strong grounds for suspicion that things have not been done properly in relation to this Prorogation. The dogs in the streets know that the reason this Prime Minister is proroguing Parliament is to avoid scrutiny as he hurtles towards 31 October and a no-deal Brexit. Nobody is fooled that the Prorogation has anything to do with the need to commence a new Session and to have a Queen’s Speech on pressing domestic Bills, which none of us has seen so far. If the litigation in which I and others in this House are involved in Scotland achieves nothing else, it will have shown that something is very much awry with the reasons given for the Prorogation.

[Justine Greening]

I agree with what the hon. and learned Lady says. Were we able to have a voice on this, many Members of this House would think that we should not even have the conference recess for three weeks and that Parliament should be here doing its job at a time of crisis, speaking on behalf of our communities.

[Joanna Cherry]

I entirely agree with the right hon. Lady on that matter. The documents lodged with the Scottish Court last week, and revealed to the public against the Government’s wishes but as a result of interventions by the legal team that I and others in this House instruct, and by the BBC and other newspapers, show that the Prime Minister had approved a plan to prorogue Parliament on 16 August. Yet, as the right hon. and learned Member for Beaconsfield said in his opening speech, as late as 25 August a No. 10 spokesperson was still denying that there was any such plan to prorogue. Indeed, in the pleadings lodged by the Government in response to the action raised in Scotland by myself and other Members of this House, the British Government referred to our contention that we were in fear of a Prorogation as hypothetical and academic. So there are very real reasons to believe that this Government are economical with the truth.

The memos produced by the British Government showed not only the somewhat distasteful comment about girly swots, with which the right hon. and learned Member for Beaconsfield dealt most ably, but that the reason why the current Prime Minister wants to prorogue this Parliament is because he wants to avoid what he referred to as the “rigmarole” of this Parliament sitting in September. So even if the Scottish case achieves nothing else, it has shown that the Government have not been entirely truthful so far.

Another myth was finally put to rest at the weekend when the right hon. Member for Hastings and Rye (Amber Rudd) resigned. Most of us were not surprised to hear her confirm that there are, in fact, no renegotiations ongoing with the EU. Of course we already knew that from the former Chancellor of the Exchequer and from a number of counterparts in the EU. I noted last week at the Brexit Select Committee that the Chancellor of the Duchy of Lancaster initially tried to give the impression that negotiations were ongoing but when pressed on the matter he conceded that there are no negotiations as such, merely discussions. We heard that from him last week, but it was good to hear it from someone who has so recently been at the heart of government and has had the decency to leave the Government given what she has seen.

The weight of evidence regarding the damage that no deal would do to the nations of these islands is overwhelming. We all know that from the work we have done on Select Committees over the past few years—work that will not be happening in the next few weeks, when Parliament is prorogued. But still the Government will not tell us the truth about the assessments they have made of the impact of a no-deal Brexit and the preparations they are making for that. So it is right that this House seeks the documentation relating to Operation Yellowhammer.

I will now concentrate on the Prorogation case, because myself and a number of other MPs and peers, as well as Jo Maugham, QC, and the Good Law Project, have raised an action in Scotland, in which we argue that Parliament is being prorogued for an unlawful purpose and to prevent democratic scrutiny, and that therefore the courts should overturn the order to prorogue. Although the judge at first instance was not with us, we had a full hearing before Scotland’s Appeal Court last week, and we are awaiting the outcome of that decision on Wednesday. Of course a date, 17 September, has also been assigned at the UK Supreme Court to hear any further appeal in the Scottish case and also an appeal on the proceedings raised in England and Northern Ireland. Members of the public should be aware that if the courts eventually find out that Prorogation was unlawful, they can order this Parliament to return. So even if we are prorogued tonight, all is not lost.

In the course of these proceedings, something curious happened last week. I commend to hon. Members’ attention an interesting article about this in the Financial Times at the weekend by David Allen Green, the distinguished legal commentator, entitled: “The curious incident of the missing witness statement”. In the Scottish case, the petitioners argue that the Government had an improper motive in seeking Prorogation, and we say that the real intention was a cynical effort to close down Parliament so that it could not block a no-deal Brexit. Usually, there is a pretty straightforward way for the Government or the responding party to rebut or refute an allegation of such bad faith. Where somebody is facing such an allegation of bad faith, the normal thing to do in an action of judicial review would be to submit a sworn statement—an affidavit—setting out the way in which the decision was made and that the decision was properly taken and to lodge relevant supportive documentation. What happened last week in Edinburgh was that the Government did not provide any such witness statement. They provided no such sworn affidavit and no official explanation. They simply supplied some documents, heavily redacted, without any covering explanation. The absence of such a statement in such litigation is, as David Allen Green says, very “conspicuous”.

[Kevin Brennan]

I am certainly not a lawyer, but general knowledge leads me to ask: is what the Government are doing here not, in effect, the equivalent, in American terms, of taking the fifth—refusing to give evidence on the basis that it might incriminate them or cause them to commit perjury?

[Joanna Cherry]

It does rather have the whiff of that.

At Prime Minister’s questions last week, the right hon. and learned Member for Beaconsfield asked the Prime Minister why it had proved impossible during the Scottish legal proceedings to find any Government official or Minister who was prepared to state on oath in a sworn statement the reasons for Prorogation. The Prime Minister did not answer the question. As the right hon. and learned Gentleman explained earlier, it has been suggested to a number of Members, myself included, by reliable sources, that Government officials were approached by the Government Legal Service about swearing such statements but refused to do so. I cannot know the reasons why they refused to sign a sworn statement; I can only speculate. I speculate that perhaps they refused for fear of perjuring themselves, or for fear that to tell the truth would be damaging to the Government. The idea that any Government official should be put in a position in which they fear having to perjure themselves before the courts of the jurisdictions of Scotland or England, or indeed any jurisdiction in the United Kingdom, is very concerning.

The same sources that suggested that officials have refused to sign sworn statements have also suggested to me, and to other Members of the House, that key figures in No. 10 and the Government have been communicating about the real reasons for Prorogation not through the official channels of Government emails and memos, but by personal email, WhatsApp and “burner” phones—normally used by people involved in a criminal enterprise to avoid being traced. If that is true, they will have adopted a subterfuge, and there can only really be one reason for that: to conceal the real reasons for Prorogation from the scrutiny of this House and, very seriously, the scrutiny of the courts.

The right hon. and learned Member for Beaconsfield explained at some length what careful thought he has given to the way in which this has been presented. I will not repeat any of that, other than to say that he has clearly applied his mind very carefully to it, and the allegations that underlie the motion are very serious. If there is no truth in them, so be it. But let us pass the motion and let there be transparency and accountability, because those are the two things, I suggest, that this Prime Minister and his shabby Administration fear the most.

[Caroline Lucas]

The hon. and learned Lady is making a powerful case. Does she agree that this Government’s cavalier treatment of parliamentary procedure and democratic principle underlines the need not for uncodified practices but for a written constitution and, in particular, a citizens’ assembly that could once again put the people at the heart of our democracy?

--- Later in debate ---

[Joanna Cherry]

I agree with my hon. Friend, but I would take the argument further, because the shabby practices of this Government and the creaking of the British constitution underline, in my mind, the need for my country to be independent of this mess.

Even as we have been speaking this afternoon, it has been reported on Twitter—this point has already been alluded to—that unidentified No. 10 sources are saying that even if we pass this motion for an Humble Address tonight, they will not comply with it. [Interruption.]

[Mr Speaker]

Order. I am extremely grateful to the hon. and learned Lady, but I gently point out to her that, as there is a significant number of other Members waiting to contribute, and as the right hon. Gentleman the Chancellor of the Duchy of Lancaster has every right and reasonable expectation to think that he will have 10 minutes or so to speak, I am cautiously optimistic that she is approaching her peroration.

[Joanna Cherry]

You are correct, Mr Speaker; I am about to draw my remarks to a close.

I am a student more of Scottish history than of English history, but our histories are bound together, and I know enough about English history to know that it was secret, unaccountable whispers of poison that brought down Edward II and Richard II. I suspect that this Prime Minister will be brought down by secret, unaccountable whispers of poison, such as those in the unattributable briefings we heard this afternoon. Let us make sure that this House and the courts see the contents of the secret whispers of poison that preceded this Prorogation, so that we can all see the real reasons why the House of Commons has been prorogued by an Executive terrified of scrutiny.

[Several hon. Members rose—]

--- Later in debate ---

[Michael Gove]

No.

The Cabinet Secretary, when he appeared before the Procedure Committee, made it clear that this convention that advice should be private has applied to Governments of all parties throughout the history of the civil service. He said that the Humble Address—the particular procedure that we are debating today—has a chilling effect that is to the severe detriment both of the operation of government and the public record of Government decisions. That is the Cabinet Secretary’s view. It is interesting that my right hon. and learned Friend the Member for Beaconsfield said that of the nine people whom he names, only one was a civil servant. Four are civil servants, including the Cabinet Secretary, and he has been clear, as Administrations of every colour have been clear, that they do not disclose this information.

Indeed, sometimes—I listened with care to what the hon. and learned Member for Edinburgh South said—there are Administrations who say that they do not reveal legal advice even when it does not exist. She told us that if we had an independent Scotland, the rules, procedures and practices in an independent Scotland would set an example to us here. But the former First Minister of Scotland, Alex Salmond, told the BBC that he had legal advice on the impact of Scotland being independent in Europe, and then, when he was asked to publish that legal advice, spent £20,000 of Scottish taxpayers’ money fighting that and saying that no freedom of information requests should be granted. Then eventually, when the court found out what had happened, there was no legal advice at all. So I will take no lectures from the Scottish National party about trust or transparency.

[Joanna Cherry]

rose—

[Ian C. Lucas]

rose—

[Michael Gove]

No, no—absolutely not. [Interruption.] No—no, thank you.

What is being asked of this House is more than just the publication of advice: private communications of a variety of public servants are about to be published if this Humble Address is published. My right hon. and learned Friend did not ask specifically in this Humble Address—

[Joanna Cherry]

Will the Minister give way?

[Michael Gove]

No. [Interruption.] No, thank you.

He did not—[Interruption.] I am not scared of the truth—Alex Salmond was scared of the truth, which is why he spent my mum and dad’s money to hide the truth.