Aleppo

Joanna Cherry Excerpts

Monday 28th November 2016 Commons Chamber

[Mr Ellwood]

I pay tribute to my hon. Friend, who I think was involved in the air campaign in Kurdistan. He brings a huge amount of expertise to the Chamber. I am unaware of the details, but I know that Syria came up. I will write to him with more details of the conversation.

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

In the letter of the hon. Member for Wirral South (Alison McGovern), whom I congratulate on her work on this issue, she points out that the Government said back in May:

“preparations for airdrops will now take place and go forward rapidly because there isn’t a moment to lose”.

The situation has worsened significantly since May, so I do not understand what has happened to that enthusiasm. More importantly, my constituents, and those of other Members, are appalled by what they see on the news and do not understand why there is not the same enthusiasm for airdrops as there was for bombing this time last year.

[Mr Ellwood]

I do not want to get drawn into discussing the hon. Lady’s latter point, which is an unhelpful comparison. The will of the House has been made clear and the Executive are looking seriously at what we can do to support the concept of airdrops, but they involve all the dangers and caveats that have been discussed. We take the lead from the United Nations personnel who are on the ground. If we are to do this in a neutral manner, it must be done through the UN. If we step in and start doing things ourselves, our involvement in the Syria campaign will take on a very different perspective, for which we would need the permission and support of this House.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 18th October 2016 Commons Chamber

[Boris Johnson]

The most important thing at this stage is that the UK is leading the way in accumulating evidence against those responsible for these crimes. It will be essential, ultimately, that we have good secure testimonials against those responsible and I have no doubt that in due course they will be useful. The mills of justice grind slowly, but they grind small.

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

T5. Last week on a cross-party visit to the west bank I was deeply concerned by the human rights abuses being perpetrated by the Government of Israel. Can the Foreign Secretary tell me when the follow-up legal report into the Israeli treatment of Palestinian child detainees will be published and outline the reasons for the delay?

[Mr Ellwood]

The hon. and learned Lady raises an important aspect of what is a very complicated challenge in the middle east that has been rumbling on for far too long. I raised this issue with the Deputy Foreign Minister during my last visit. We have tried to get further access and further conditions put in place to make sure those child detainees are provided with the support they deserve.

Report of the Iraq Inquiry

Joanna Cherry Excerpts

Wednesday 13th July 2016 Commons Chamber

[Mr Hammond]

I suspect that right hon. and hon. Members would have been dismayed if they had not had an opportunity to put on record their reactions to the Chilcot report, albeit necessarily initial reactions. We will no doubt hear in the course of debate whether the concerns that my right hon. Friend expresses are widely shared.

The words of the very first paragraph of the executive summary of the report spell out the enormity of the undertaking and thus the gravity that should have attended all aspects of its preparation and execution:

“In 2003, for the first time since the Second World War, the United Kingdom took part in an opposed invasion and full-scale occupation of a sovereign State–Iraq.”

A reading of Sir John’s report, however, suggests that flaws, errors and omissions abounded. If the House will allow me, I will try to summarise the key findings that he makes.

First, on the question of why the United Kingdom went to war, the two issues central to the case that Tony Blair put forward were Saddam’s failure to comply with the obligations imposed by the UN Security Council between 1991 and 1999, and the message that the international community would send if those obligations were not enforced, and the threat to international peace and security from the weapons of mass destruction that, he argued, were at Saddam’s disposal.

The report identifies an

“ingrained belief of the Government and the intelligence community that Saddam Hussein’s regime retained chemical and biological warfare capabilities, was determined to preserve and if possible enhance its capabilities . . . and was pursuing an active and successful policy of deception and concealment.”

There were good reasons for this belief, given the past actions of Saddam’s regime. His past use of chemical weapons against Kurdish civilians and Iranian military forces, his refusal to comply with the demands of weapons inspectors, and his refusal to comply with UN Security Council resolutions all pointed in that direction. As Sir John set out:

“As late as 17 March, Mr Blair was being advised by the Chairman of the Joint Intelligence Committee that Iraq possessed chemical and biological weapons, the means to deliver them and the capacity to produce them.”

However, as Sir John also says:

“It is now clear that policy on Iraq was made on the basis of flawed intelligence and assessments.”

He finds that

“At no stage was the proposition that Iraq might no longer have chemical, biological or nuclear weapons or programmes identified and examined”

by either the Joint Intelligence Committee or the wider intelligence community.

In the case that he set out to the House of Commons on 18 March 2003, Mr Blair also argued that there was a link between international terrorism and weapons of mass destruction, and that—I quote from the then Prime Minister’s statement—

“the two together constitute a fundamental assault on our way of life.”—[Official Report, 18 March 2003; Vol. 401, c. 767.]

Sir John finds that

“While it was reasonable for the Government to be concerned about the fusion of proliferation and terrorism, there was no basis in the JIC Assessments to suggest that Iraq itself represented such a threat.”

When it comes to the use and presentation of intelligence, in particular the Government’s dossier on Iraq’s weapons of mass destruction published on the day of the Commons debate on 24 September 2002, Sir John finds that

“There is no evidence that intelligence was improperly included in the dossier or that No.10 improperly influenced the text”

and that

“The JIC accepted ownership of the dossier and agreed its content.”

However, he also finds that the judgments presented in Mr Blair’s statement to the House that day and in the dossier

“were presented with a certainty that was not justified.”

The Joint Intelligence Committee, he finds, should have made it clear to Mr Blair that the assessed intelligence had not established beyond doubt either that Iraq had continued to produce chemical or biological weapons, or that efforts to develop nuclear weapons continued.

On the much debated question of the legality of the war, the inquiry has not expressed a view on whether military action was legal. As Sir John says, that could

“only be resolved by a properly constituted and internationally recognised Court.”

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

The Government are refusing to release confidential advice that Whitehall officials gave to Gordon Brown about the remit of the inquiry. This advice was what made it impossible for Sir John Chilcot to rule on whether the 2003 war was illegal. The Government’s refusal flies in the face of an Information Tribunal ruling which ordered the material’s release, and it means that the public cannot see what options were considered when deciding on the nature and the scope of the inquiry when it was established. Will the Government reconsider their refusal to release that information?

[Mr Hammond]

The Government, in considering this report, will look at all these matters, but that is not the answer that Sir John has primarily identified for his decision not to pass any view on whether military action was legal. He says that the inquiry was not constituted in a way, nor did it have the necessary skills or qualifications, to make that decision.

[Joanna Cherry]

With respect, that is precisely my question. The Information Tribunal has ordered the release of material showing why the remit of the inquiry was so refined. This is not a criticism of Chilcot; it is a criticism of the present Government for refusing to release information about why the scope of the inquiry was restricted and could not look at the legality. That is what the public want to know.

[Mr Hammond]

The point I am making is that Sir John himself identifies not the lack of remit, but the lack of qualifications of the members of the inquiry to reach that decision. He says that that could

“only be resolved by a properly constituted and internationally recognised Court.”

The hon. and learned Lady will know that a huge number of documents have been declassified and made available in this process, but clearly it is not possible to declassify every document.

Sir John goes on to find that, although the then Attorney General, Lord Goldsmith, advised on 13 March 2003 that there was, on balance, a secure legal basis for military action,

“The circumstances in which it was ultimately decided that there was a legal basis for UK participation were far from satisfactory.”

Sir John, however, is clear that military action was not undertaken as “a last resort”— that there were further diplomatic steps that could have been taken to seek compliance by the Saddam regime—and that by moving to a military solution when the UNSC would not sanction such a development the UK, far from upholding it, was “undermining the Security Council”.

--- Later in debate ---

[Emily Thornberry]

I hear what the right hon. and learned Gentleman says, but my point is that, again, information was available and could have informed the intervention. Once the initial intervention had been made, what happened thereafter? How were manifest and obvious dangers protected against? I do not think that those important points were considered, and again we learn a lesson from Chilcot and Iraq that is so much more important that any form of soap opera regarding Tony Blair or not Tony Blair.

The other important issue is post-war planning, some of which has been touched on—this is my final point, Mr Speaker, as everyone will be glad to hear. Perhaps most devastatingly, Chilcot highlights the total absence of adequate planning for what would happen after the war and the long-term strategy for Iraq. If ever a mistake should never be repeated, it is the idea that we enter into another military intervention with no idea of its consequences, no plan for the aftermath, and no long-term strategy. And yet, that is the exact hallmark of all the outgoing Prime Minister’s interventions.

Again, we see the evidence in Libya. In the words of President Obama, the Prime Minister became “distracted”, and once the Gaddafi regime had been overthrown, the lengthy, arduous task of post-war reconstruction was all but ignored. In the years since, Libya has been riven by factionalism and violence. Its experiment with democracy was brief, with power in the hands of rival militias, and the ungoverned space that that created was an invitation for Daesh to establish a strategic foothold on the Libyan coast. It is a stain on this Government that they began to pay real attention to the mess they had left in Libya only once that terrorist threat from Daesh became too urgent to ignore.

[Joanna Cherry]

I am not sure whether the hon. Lady has said anything about Chilcot’s findings on the circumstances in which it was ultimately decided that there was a legal basis for UK participation in Iraq, but he says that they were far from satisfactory. I am sure she will agree with me and endorse the view presented earlier that the Attorney General should give independent and impartial advice. According to evidence to the Committee, Chilcot details how the then Attorney General initially resisted the legality, and eventually acquiesced in the view that the use of military force against Iraq could be legally justified. Has the hon. Lady formed a view about what changed the then Attorney General’s mind?

[Emily Thornberry]

Tempting though it is to debate that issue with the hon. and learned Lady, it is important to note that any Attorney General knows that they are the only person in the Cabinet who can say to the Prime Minister, “No. You can’t do that. It is not legal. You are not allowed to.” That heavy burden must be exercised by people of great courage and substance. It is about the rule of law and the fact that no one is above the law. All AGs need to learn that lesson, and they must be confident and capable of standing up to their leader. That is an important point and perhaps another lesson.

Britain has always been a leading light in the development of international law, and much international law has been a result of documents that we have drafted. Our adherence to international law has been a very important part in its development. One thing that has been clouded, as a result of the Iraq intervention and other interventions since, has been the need for a clear law on the circumstances in which one can and cannot intervene. That has not developed as well as it might have if there had not been a temptation to try to press the facts into what is understood of the law. My right hon. Friend the Member for Leeds Central (Hilary Benn) is a big fan of the Responsibility to Protect. The effect the Iraq war had on the development of RtoP is very sad: Cook was attempting to develop it at the time of the Iraq war and it was held up as a result of the intervention in Iraq. Were the lessons on long-term planning from Iraq learned in Libya? I would say absolutely not. The central lesson is this: you cannot bomb a country from 30,000 feet into a western-style democracy.

In conclusion, we cannot turn the clock back. We cannot correct the mistakes that were made. We cannot bring back the lives that were lost. We cannot undo the chaos we have created, but we can, and we must, stop those mistakes being repeated. Unfortunately, as I have pointed out today, whatever his rhetoric and whatever his well-meaning intentions, too often the outgoing Prime Minister has repeated exactly the same mistakes in his own military interventions: relying on speculative intelligence, keeping Parliament in the dark, and failing to plan for what happens afterwards. It is to be hoped that the new Prime Minister will study the Chilcot report not as a commentary on decisions made in the past but as a guide to the decisions she will have to make. Let us hope she does so. As she takes on her new and onerous responsibilities, we wish her well.

--- Later in debate ---

[Mr Grieve]

I simply quote from paragraph 810 of the executive summary:

“It is an essential part of the legal basis for military action”—

this was written by an official in the Attorney General’s Department—

“without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution. The Attorney General understands that it is unequivocally the Prime Minister’s view that Iraq has committed further material breaches as specified in [operative] paragraph 4 of resolution 1441, but as this is a judgment for the Prime Minister, the Attorney would be grateful for confirmation that this is the case.”

It is important to understand one of the big changes that has probably taken place between 2003 and today in the way in which a Law Officer’s advice is secured. My impression from reading Chilcot—I hope I have got this right—is that, in practice, the Attorney General was provided with only sketched backgrounds of the factual analysis on which his legal opinion was being sought. The big difference now, and I can tell the House this without giving away state secrets, is that if Law Officers are asked to advise on a factual basis that involves a serious or complex problem of international law, they will receive briefing that is as good as, and—if they demand it—potentially better than, that which would be provided to the Prime Minister himself as to the intelligence and factual base that justifies it, so they have to make their own independent assessment. However, it is quite clear that, in 2003, and, I suspect, even before then—I do not think this was peculiar to 2003—that was not the practice that was adopted; it was not how Government worked. In practice, the Law Officer, Lord Goldsmith, was placed in a position where he had, reasonably, to take on trust the factual assessments made by others, and particularly the Prime Minister.

I want to make it clear that I cannot make a judgment on whether Lord Goldsmith’s advice of 7 March was right or not, but he set out—correctly, in my view—the alternative interpretations available for resolution 1441. I simply make the point, as I did in my intervention, that there are areas of international law that raise massive difficulties of interpretation. If, for example, we stuck, as some jurists would argue, to the principle that no military intervention can take place without UN Security Council authorisation, the well-established United Kingdom doctrine of intervening on the basis of humanitarian necessity, which is what led us to be able to take action in Kosovo, would never have come about. I simply chuck that into the pool of the debate the House has had in trying to understand some of the complexities.

Of course, none of that gets away from the fact that the debate would likely have been very different in Cabinet if Lord Goldsmith’s advice in its original form had been properly presented, circulated and discussed. As any of us who have been in government know, the process by which we moderate each other’s opinions is by challenging them. If we do not have a process of challenge, we should not be surprised that, at the end of the day, people simply end up rubber-stamping decisions because it appears convenient to do so. One of the interesting features, I might add, of being in coalition was that one quickly realised that because some members of, for example, the National Security Council or the Cabinet were not beholden to the Prime Minister, the level of challenge was raised in a manner that one might not necessarily have found in a single-party Government, which is an interesting reflection on some of the problems that flow from it. Of course, when one has a Prime Minister who is utterly dominant after four or five years in government and receiving a triumphant second mandate, these things become even harder.

Those, then, are my thoughts on those two principal issues. There are lots of other issues in the report, which is one of the most compelling reads I have had. I am not sure I am going to be able to get through the whole lot, but I will certainly try to read much more of it.

Let me just make two final points. First, the right hon. Member for Gordon (Alex Salmond) expressed the desire that accountability should lead to somebody being held at least in contempt of this House if Mr Blair did act improperly. I simply say to him that, just as some people were talking about impeachment, which was last used in 1806, contempt proceedings in Parliament—unless they are based on findings made in an external tribunal that meets article 6 compliance —will, in practice, be very difficult. I would strongly argue that, tempting as such a route might suggest itself to be, the practical difficulties are likely to make it impossible to follow. I say that in all sincerity.

[Joanna Cherry]

I would like to explore this with the right hon. and learned Gentleman. I am not quite clear in what way he considers that the former Prime Minister’s civil rights and obligations would be determined in a contempt motion. As I understand it, as a novice in parliamentary procedure, it is a breach of privilege. It is not a determination of the former PM’s civil rights or obligations, and it is clearly not a criminal charge—a contempt of court. Could the right hon. and learned Gentleman elucidate on what basis he thinks that article 6 would be engaged?

[Mr Grieve]

It depends, I suppose, on what sanction this House wishes to follow. However, there is a second issue. We may have examples where somebody says one thing to this House and, in front of a tribunal or court of record, when giving evidence on oath, says something different. The House can then look at those two things juxtaposed and conclude, for example, that the House was misled in evidence that it was given. That might well give rise to a finding of breach of privilege for contempt, although that still leaves unanswered the question of sanctions.

I do understand the hon. and learned Lady’s point. However, I am not, in this case, making some definitive statement; I am simply describing what, to my mind, appear to be the difficulties that are likely to come from trying to pursue this particular course of action. As, on the whole, I would like the reputation of this House to stand enhanced by the way in which we approach the Chilcot inquiry report and its aftermath, I am always wary of suggesting, counselling or recommending a course of action that might lead to the very opposite of what is intended.

--- Later in debate ---

[Joanna Cherry]

The right hon. and learned Gentleman knows that I hold his legal expertise in the highest regard. He says that it is important that the reputation of this House is enhanced by the way in which it deals with the outcome of this report. Surely the reputation of this House will not be enhanced if there is no attempt to hold the former Prime Minister to account.

[Mr Grieve]

I have listened to the hon. and learned Lady, and this matter can be debated or discussed at greater length, but, as I say, I counsel caution. The truth is that the then Prime Minister, Mr Blair, has been examined at the court of public opinion and, I suspect, of history, and I think it is likely that that judgment is going to be pretty unkind to the way in which this process was carried out. Whether the House feels that it wants to do more immediately is a matter that we can debate another time.

The point has been made that the outcome of this process in the middle east has been, on the evidence, lamentable. Of course, the middle east is a place of massive dysfunctionality. It may be that even if we had not intervened in 2003, we would find that another pattern of war and bloody conflict would have occurred, based on a whole series of disintegrations of the social fabric of that area that has been going on for some time, and that we can see manifested in the current conflicts in Iraq and Syria. That is not, I think, entirely due to our intervention in 2003, but has elements inherent within those societies themselves. I worry very much—indeed, this has coloured my view as a politician ever since—that this has also had a terrible effect on public trust in us and our institutions in this country that carries itself all the way into the Brexit referendum and its aftermath. On that, I rather agreed, for once, with an article in the New Statesman.

We have much to learn from this very sorry episode. The nugget I derive from it is that we must have open debate and that we must avoid simply treating politics as presentational gimmicks. That has become a habit in modern western society because of the development of social media, the press and the way in which we communicate ideas, but if we continue to do it we will ruthlessly undermine sensible decision making and the ability to come to the right conclusions by debate, which is absolutely the heart of what this House should be about.

Oral Answers to Questions

Joanna Cherry Excerpts

Tuesday 12th July 2016 Commons Chamber

[Mr Speaker]

I am sorry that I cannot accommodate all colleagues, but I will take Joanna Cherry.

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

Can the Minister tell the House whether following Brexit the United Kingdom will continue to participate in the Paris climate change agreement, or whether that agreement will need to be rewritten?

[Mr Ellwood]

This is a prime example of where we need to calm down and not scaremonger. We are absolutely committed to COP 22 on climate change, and to the target of reducing our emissions by 2050.

Europe, Human Rights and Keeping People Safe at Home and Abroad

Joanna Cherry Excerpts

Tuesday 24th May 2016 Commons Chamber

[Mr Hammond]

Sir Simon has explained that what he was trying to convey was that we are mainstreaming, so we do not have a separate category any longer. We have mainstreamed human rights into our consular, political and mainstream diplomatic work. By doing so, we embed that in a way that is delivering results throughout our agenda.

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

Does the Foreign Secretary agree that it is a bit rich for British diplomats and politicians to travel the globe lecturing others about human rights when we are about to repeal our own Human Rights Act and some members of the Government of which the right hon. Gentleman is a part wish to withdraw from the European convention on human rights?

[Mr Hammond]

No, I do not. Throughout the world, Britain is recognised as an important champion of human rights and a country in which many of the rights taken for granted today across the world originated. I hope we can have a constructive debate about these issues.

Before I conclude, I want to confront head on the notion, which have heard, that the Government are putting economic and trade interests before human rights. Yes, we are serious about increasing our global trade to secure more jobs and greater economic security for the British people, but that does not come at the expense of our values. The deeper and broader our relationships with other countries become, the greater our influence and the easier it is to have frank conversations about issues on which we disagree. Building economic and political relationships helps to build influence and leverage. It is not always visible—progress often takes place behind the scenes—but we should be ruthlessly focused on what works. On the occasions where private influence fails, we can and do speak out publicly. Ultimately, I believe the best way to achieve the positive changes we all want to see on human rights is to engage constructively as part of a comprehensive relationship.

--- Later in debate ---

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

I rise to address the issue of human rights. I am not as reassured as the right hon. and learned Member for Rushcliffe (Mr Clarke) is by the Queen’s Speech, because it is still the Government’s avowed intention to introduce what they call a British Bill of Rights and to reform human rights law, and there has been no undertaking that the Human Rights Act will not be repealed. However, I have some good news for those in the House who wish to save the Human Rights Act: it is not possible for this Parliament to repeal the Human Rights Act and replace it with a British Bill of Rights without the consent of the Scottish Parliament, and, given the make-up of the present Scottish Parliament, there is absolutely no question of that consent being granted.

Two years ago, during the independence referendum, the Prime Minister invited Scotland not to leave but to lead the United Kingdom. Perhaps he should be careful what he wishes for in future, because, given the nature of the devolved settlement, the Scottish Parliament will now be in a positon to lead the United Kingdom by saving the Human Rights Act for the whole of the UK.

[Mr MacNeil]

Although we in the SNP can perhaps claim credit for saving the Human Rights Act, the Conservatives should not be shy of taking some pride from its authorship. Indeed, a Conservative MP, Sir David Maxwell Fyfe, was one of the lead drafters of the European convention on human rights. He did so having been a Nuremberg prosecutor, and as a response to the rise of communism in eastern Europe. The Conservatives had a lot to do with that safety mechanism for the citizen, and it ill behoves them to try to change it.

[Joanna Cherry]

My hon. Friend is absolutely right. To move to more modern times, when the Human Rights Act was passed by a Labour Government in 1998, it was intended to be a floor rather than a ceiling for human rights across the United Kingdom. The devolved Parliaments can go further if they so choose, and in Scotland we have chosen to do that, so complying with the European convention is not the limit of our ambitions. In fact, I would say that a key challenge for progressive Governments is to find ways not to avoid human rights responsibilities but to embed human rights across different areas of social policy.

[Margaret Ferrier (Rutherglen and Hamilton West) (SNP)]

We have previously heard in this House the argument that we should not turn our backs on Saudi Arabia. For clarification, we are calling for an arms embargo, not a trade embargo, but we must ensure that we never place more importance on trade than we do on human rights. Does my hon. and learned Friend agree that we are all hoping Saudi Arabia is not too proud to heed such opinions and to move forward into the 21st century on human rights?

[Joanna Cherry]

Yes, I agree entirely. I was very pleased to hear the right hon. and learned Member for Beaconsfield (Mr Grieve) remind all of us across the House that the signal the British Government are sending out by indicating that they want to repeal the Human Rights Act and possibly even leave the convention is having an adverse impact across Europe, particularly in Russia. If we want to hold other countries in the world to high standards, we must espouse the same high standards rather than water them down.

Embarking on a course of so-called reform is never a very good idea unless we have a good idea about what we want to do and why we want to do it. Since the UK Government announced that they intended to bring forward a Bill of Rights in the Queen’s Speech last year, we have seen a great deal of confusion in the Government about what they want to do. The Justice Secretary has appeared before parliamentary Committees several times to try to explain why they are pursuing a path of so-called reform of the Human Rights Act: sometimes his position seems to be informed by his Euroscepticism; sometimes he talks of giving powers to British judges rather than to European ones; and sometimes he says that we only need to tweak the Human Rights Act. Both he and his junior Minister, the hon. Member for Esher and Walton (Mr Raab), whom I see on the Front Bench, have told us that they wish to stay in the European convention on human rights, but the Home Secretary recently gave a speech in which, according to my reading, she was pretty clear that she thought we should leave it.

I suggest that this confusion and lack of clarity do not bode well for the Government’s plans on human rights, but the Scottish Parliament will be happy to ride to the rescue. In all three separate devolution arrangements, the Human Rights Act is a matter reserved for the Westminster Government, but human rights themselves are not so reserved. Members will search in vain for human rights in the schedule of reserved matters to the Scotland Act 1998, because they are not reserved. If this Parliament wants to legislate in the field of human rights, it will be required to obtain the consent of the Scottish Parliament.

The First Minister, Nicola Sturgeon, has made it very clear that there is absolutely no question of such consent being given. The reason consent would have to be given is the Sewel convention, which has now found statutory form in section 2 of the new Scotland Act 2016. On 11 November 2014, the Scottish Parliament, as then constituted, voted by 100 votes to 10 in favour of a motion supporting the Human Rights Act and expressing confidence in it.

I believe that the Northern Ireland Assembly passed a similar vote of confidence in the Human Rights Act in June 2015. It recognised the “vital importance” of the Act to the Good Friday agreement, which we should never overlook. The National Assembly for Wales also passed a motion with overwhelming support in November, stating that

“we oppose any attempt to repeal the Human Rights Act”.

I believe that the Welsh First Minister has argued that scrapping it would make the UK

“look like a banana republic.”

I could not have put it better myself.

Since the Scottish Parliament last gave its overwhelming backing to the Human Rights Act, there has been an election in Scotland, which was won by the Scottish National party. The fact remains that in the new Scottish Parliament the parties that support the Human Rights Act far outweigh those that do not, but we are not sure of the position of the Scottish Conservatives. Their leader, Ruth Davidson, recently gave an interview to the Pink News, a paper dear to my heart and hers, in which she said she opposed the Home Secretary’s plans to withdraw from the European convention on human rights. However, Ruth Davidson has as yet been silent on the repeal of the Act.

During the election in Scotland the Scottish Tories took great care to distance themselves from this Government—they did not even mention the Conservative party on their leaflets. But Ruth Davidson will not be able to duck the issue forever: my colleague Ben Macpherson, the new SNP MSP for Edinburgh Northern and Leith, has lodged a parliamentary motion in the Scottish Parliament calling on all MSPs to make it clear that the new Scottish Parliament will refuse consent to repeal the Human Rights Act. It is time for the Ruth Davidson party to get off the fence. But even if she ends up siding with her colleagues here—as she usually does, when push comes to shove—the overwhelming majority of Members of Scottish Parliament want to keep the Human Rights Act and will keep it for the whole United Kingdom.

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.

European Union Referendum Bill

Joanna Cherry Excerpts

Thursday 18th June 2015 Commons Chamber

[Mr McFadden]

My hon. Friend has made his point about shrinking childhood before. I say to him that maturity is not an exact science. There will be some people who are mature at 16 or perhaps less, and some who manage to hang on to their immaturity for a great many years after that. I do not believe that any of us can pinpoint an exact age.

One thing that the EU referendum has in common with the major constitutional referendum that took place in Scotland last year is that it is a decision for a long time into the future. To quote the right hon. Member for Gordon (Alex Salmond), who is not here today, it is a decision to be made once in a lifetime, or at least for a generation, not something to be repeated every few years. I hope that all hon. Members will agree with that. The referendum will not return every few years like general elections.

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

The right hon. Gentleman will remember from our happy days together in the Labour club at Edinburgh University that in Scotland, unlike in England, the age of legal capacity is 16. However, child protection laws in Scotland, like those in England, go up to the age of 18. The hon. and learned Member for Sleaford and North Hykeham (Stephen Phillips) made the point that the age of legal capacity in England is 18, but it is worth making the point that it is 16 in Scotland.

[Mr McFadden]

I thank the hon. and learned Lady for her intervention.

The issue before us is the UK’s future in the European Union, a huge constitutional issue that will affect the future of the country and its citizens for many years to come. The rights of Britain’s young people will be directly at stake in the referendum. Let us consider the politics behind why the referendum is coming about. A major reason is concerns about how the free movement of people operates in the EU and in this country. Our citizens currently have the right to live, work and study in 27 other member states by virtue of our membership. I do not think there are many people who want us to leave the European Union but do not want to restrict the right of free movement. There may be some, but not many, and that is pretty high on the agenda of those who want to leave.

If we leave the European Union, and as a result decide that we will restrict the rights of other European citizens to come to live and work in the UK, we can be sure that reciprocal action will be taken against young people from the United Kingdom. The rights that British citizens currently enjoy to live, work and study throughout the EU are directly at stake in the referendum. Even setting aside the general debate about the right of 16 and 17-year-olds to vote in elections, that is a strong reason for giving those citizens the right to vote in the referendum. Their future is directly at stake.

It is 40 years since this country last voted on membership of the European Union. As we hear perennially in these debates, someone would have to be in their mid-50s to have voted in the last EU referendum. The referendum will not come around every few years. It is a generational decision that will have a direct impact on young people’s future rights, which is why I believe they should be given a voice in it.

--- Later in debate ---

[Tom Tugendhat]

I bow to my hon. Friend’s superior knowledge of Scottish law.

My point is not about 16 and 17-year-olds because my hon. Friend the Member for Norwich North (Chloe Smith) covered that so completely and so ably.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Tom Tugendhat]

May I make a little progress, please?

I will instead make a few comments about citizenship, because that is what we are really talking about. This is a constitutional vote. It is not a tactical vote or a minor amendment; it is about the constitution and governance of our country. When someone chooses to be a member of our society and a participant in it, there are various things they can choose to do. They can choose to reside here for educational purposes and stay for year or two, or perhaps do a PhD and stay for longer. They can also choose to reside here for an occupation and stay for a few months or a few years; or they can choose—as I am extremely glad my wife has done—to reside here for significantly longer to raise a family, marry and settle. If they do so, they are choosing a specific state of existence in our nation. What they are not choosing is full citizenship, because that is governed by other laws.

[Joanna Cherry]

Following on from what the hon. Member for South Leicestershire (Alberto Costa) said in his intervention, the age of legal capacity in Scotland is 16.

[Tom Tugendhat]

The hon. and learned Lady has greater knowledge of that subject than I do, but I do not know whether her knowledge is greater or less than that of my hon. Friend the Member for South Leicestershire. I will leave it to them to debate that.