Leaving the EU

Joanna Cherry Excerpts

Monday 14th January 2019 Commons Chamber

[The Prime Minister]

I had positive discussions with trade union leaders and a positive discussion with the chairman of the CBI.

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

The Prime Minister has said that these written assurances have legal standing and legal force, and that they will be taken into account, but she has also acknowledged that paragraph 2 of the Attorney General’s letter of advice says that they do not “alter the fundamental meanings” of the provisions of the withdrawal agreement. Can she confirm that, ultimately, as a matter of law, in any conflict between the wording of these assurances and the wording of the withdrawal agreement, the withdrawal agreement would triumph, and that therefore, in the months since she pulled the meaningful vote, nothing has changed?

European Council

Joanna Cherry Excerpts

Monday 17th December 2018 Commons Chamber

[The Prime Minister]

What I believe is right is that, having heard the concerns that have been expressed by Members of this House, the Government are taking those concerns to the European Union. Yes, we have further statements from the EU with legal status in the Council conclusions than we have had before, but we are seeking yet more and further assurances from the European Union. I think that is the right thing to do, then that can be debated properly by this House and the vote taken.

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

Last Thursday, the Attorney General told the House that he was reviewing the question of whether article 50 could be revoked by a simple vote of this House or by legislation. This Thursday, the Scottish case is being referred back from the European Court of Justice to the court in Edinburgh to look at this issue. Can the Prime Minister confirm for us that the Government’s position on how article 50 could be revoked—whether through legislation or whether simply a vote of this House is required—will be set out to the court in Edinburgh on Thursday?

Exiting the European Union: Meaningful Vote

Joanna Cherry Excerpts

Tuesday 11th December 2018 Commons Chamber

[Mr Lidington]

I will give way to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but then I will make some progress

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

I thank the right hon. Gentleman—he is being very generous. A moment ago, he said that the only way to take the risk of no deal off the table was to ratify the deal. I know that he is a very honest man. Surely he must acknowledge that there is a third way as a result of yesterday’s decision by the European Court of Justice, namely to revoke the article 50 notice. He may not wish to do that, but surely he will acknowledge that theoretically it is a third way to avoid the possibility of no deal.

[Mr Lidington]

The hon. and learned Lady is right: in the wake of the court’s decision, that is a legal and constitutional possibility. But the Prime Minister made it clear again yesterday that it is not the Government’s policy, and indeed not just my party but the Labour party committed last year to respect the result of the 2016 referendum.

Exiting the European Union

Joanna Cherry Excerpts

Monday 10th December 2018 Commons Chamber

[The Prime Minister]

My right hon. Friend has pressed that point before. I recognise that the House of Lords came out with an opinion, but there are other legal opinions in relation to the application of various aspects of international law on the treaty that say that we do indeed have legal obligations in financial terms. I believe that, as a country, we should meet those obligations.

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

The Prime Minister has said that she does not want a second vote because it risks dividing the country again, but I remind her that the United Kingdom is not a country; it is a Union of four nations. That Union is already divided, because two out of those four nations voted to remain. She has conceded this afternoon that she cannot get the House to support her deal. If she really believes in the deal, why will she not have the courage of her convictions and put that deal to the four nations of the UK, giving them a choice between her deal or remaining in the European Union, which the Court of Justice said this morning is possible? Why not put it back to the people, Prime Minister?

[The Prime Minister]

I can recognise why somebody representing the SNP might have a desire to try to change the result of a referendum when it has taken place, but I say to the hon. and learned Lady that I have answered the question in relation to going back to the people on a number of occasions this afternoon and on other occasions. I have not been lax in coming to this House and standing up in this Chamber to answer questions on this matter. I also point out to her that we entered the European Economic Community as one United Kingdom, and we will be leaving as one United Kingdom.

Oral Answers to Questions

Joanna Cherry Excerpts

Wednesday 5th December 2018 Commons Chamber

[The Prime Minister]

My hon. Friend raises an important issue. Potholes, local services and other issues that matter to people on a day-to-day basis are issues that are raised on the doorstep. My understanding is that the money is available and should be being spent now.

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

Q10. In the Scottish case that has established that article 50, or the Prime Minister’s article 50 notice, can indeed be revoked, the UK Government have lost three times: in the Supreme Court of Scotland, the UK Supreme Court and, yesterday, in the advocate general’s opinion in the Court of Justice of the European Union. Can the Prime Minister tell us why she has put so much public money and energy into depriving this Parliament of legal certainty about the options that will be open to it when her deal is voted down next week?

G20 Summit

Joanna Cherry Excerpts

Monday 3rd December 2018 Commons Chamber

[The Prime Minister]

The right hon. Gentleman asked me about WTO reform, so let me give him a couple of the issues I raised in relation to that—I think from conversations with others that it is recognised that it needs to be addressed. One is the dispute resolution mechanism, which everybody recognises is too slow. If people are to be able to have faith in the rules set by the WTO, there needs to be a dispute mechanism in which they can have faith as well. Another key area of concern is the very slow progress the WTO has made on the digital economy and looking at the whole area of e-commerce. Those are just two of the issues that will be referenced in relation to WTO reform.

The right hon. Gentleman talked about trade deals and said—I was listening carefully—that we would not be able to strike trade deals until after the transition or implementation period. That is not correct: during that period we will be able to negotiate, sign and ratify trade deals, which can then come into operation at the end of the implementation period.

I hope we will all welcome the growing and developing bilateral relationship between the UK and Argentina, and when I was there I was pleased to be able to welcome the extra flight that will now take place from the Falkland Islands via Cordoba to São Paulo.

The right hon. Gentleman asked whether any pressing human rights issues had been raised. I specifically referenced in my statement a human rights issue on which this Government have been leading the world: modern slavery.

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

Not true.

[The Prime Minister]

It is true, through the Modern Slavery Act 2015, and I am pleased to say that the Australians are now introducing legislation that mirrors ours in relation to supply chains. I encourage other countries around the world to do the same.

Leaving the EU

Joanna Cherry Excerpts

Monday 26th November 2018 Commons Chamber

[The Prime Minister]

I can assure my hon. Friend that I have not forgotten the House of Lords report, but there is a different opinion, which is that there are legal obligations that this country would hold to the European Union in relation to financial payments in any circumstances. As I have said before, I think that it is important that this country upholds our legal obligations.

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

Tomorrow I will be part of a cross-party group of Scottish parliamentarians, from the Scottish National party, the Labour party and the Scottish Green party, who are going to the Court of Justice in Luxembourg to establish that it would be possible for this Parliament to tell the Prime Minister to revoke her article 50 notice. Does she share my sense of pride that it will be Scottish parliamentarians and the Scottish courts who will give this Parliament a true alternative to her deeply flawed deal?

[The Prime Minister]

I know that the hon. and learned Lady has consistently raised the issue of the revocation of the article 50 notice. As she knows, it is not going to happen, because it is not Government policy.

EU Exit Negotiations

Joanna Cherry Excerpts

Thursday 15th November 2018 Commons Chamber

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

Articles 14, 87, 89, 158 and 174 of this agreement mean that the jurisdiction of the European Court of Justice will continue to reign supreme across the UK, for four years after the transition period in some respects, for eight years after the transition period in other respects and indefinitely in the case of Northern Ireland. In what respects has the Prime Minister’s red line on the European Court of Justice survived this agreement?

[The Prime Minister]

I was very clear when we brought back the agreement in the December 2017 joint report that, in relation to citizens’ rights for example, there would continue to be an ability for the interpretation of the European Court of Justice in relation to European Union law on those rights to be considered for a period of time beyond the end of the transition period and that it would then cease.

It is not the case that Northern Ireland will be indefinitely under the jurisdiction of the European Court of Justice. The future relationship that we are negotiating with the European Union will ensure that the United Kingdom is removed from the jurisdiction of the European Court of Justice. If the hon. and learned Lady looks at the proposed governance arrangements, she will see that we are very clear that the court of one party cannot determine matters in relation to another party.

EU Withdrawal Agreement: Legal Advice

Joanna Cherry Excerpts

Tuesday 13th November 2018 Commons Chamber

[Mr Lidington]

My right hon. and learned Friend is spot on. The Law Officers’ advice goes beyond other forms of legal advice in its particular complexity, sensitivity and constitutional importance. For that reason, there is a high premium—higher even than that in respect of other forms of legal advice—on protecting that advice.

The Law Officers convention is also a facet of the important constitutional convention of collective Cabinet responsibility. Again, the ministerial code is clear on this. It says that all members of the Cabinet must publicly support collective decisions, but are able within Cabinet to debate and raise concerns privately, and the Law Officers’ contributions to those Cabinet discussions and decisions should similarly be protected, just as the contributions of other Cabinet Ministers or the minutes of Cabinet meetings themselves are protected. That ensures that the public debate is about the Government’s collective decision and the Government’s accountability to this House, rather than about internal processes.

Where the right hon. and learned Member for Holborn and St Pancras was correct was to say that, in the case of the Iraq war and Lord Goldsmith’s advice, an exception was made to this general rule. It is certainly the only one of that nature in modern times that I have been able to find so far. However, it was done some years—two years—after the event, following the appearance in the media of selected verbatim extracts from the advice. However, the key difference between that case and what we are debating this afternoon is that, in the Iraq case, the point at issue was not the legal implications of particular policy options, but whether the Government’s entire action in Iraq was or was not lawful. That was the point at issue then, which is why the then Government decided that it was right for them to make an exception to what is normally a very firm convention.

I believe that, if this convention were to be set aside, there would be an adverse impact on the quality of discussions within Government and of the Government’s collective decision making, which would not be in the interests of any Government of any political party. Whether by means of resolutions of the House or otherwise, if Law Officer advice is made public, future advice is likely to be less frank and candid than at present and less likely to be written down. That is not going to make for good government.

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

Is there not another aspect to this? A number of the Minister’s Cabinet colleagues have said that they did not properly understand the legal implications of what was agreed to last December. That is of course what has led to the dilemma in which the Government now find themselves about the backstop. If the Cabinet were not able to understand the legal advice last December, surely that means they will not understand it this time round and it is important that this House, which will take the ultimate decision, fully understands the legal implications of what is about to be agreed to, if indeed there is going to be an agreement.

[Mr Lidington]

I go along with the hon. and learned Lady this far: I have set out how the Government intend to discharge the commitment that we have given to making sure that Members in all parts of the House are fully informed and do understand the nature of the legal, as well as the economic and political, implications of the decision that we are facing. However, at no time in our Parliament’s history has any Government operated in an environment where legal advice is prepared for Ministers one week and then made public the next.

I have to be clear that this motion does go against the Law Officers convention, which Governments of all colours have defended. I hope, therefore, that, during this debate, the right hon. and learned Member for Holborn and St Pancras and his colleagues will reflect on the assurances I have sought to give to the House this afternoon; will take them in the spirit in which I, on behalf of the Government, certainly intend them; and will, having reflected on these matters, decide not to press their motion to a Division, but to go forward in a spirit of cross-party consensus, so that we can work out together how to present to the entire House the information and analysis that Members on all sides rightly expect to have available in order to make an informed decision on a political issue of this historic importance.

--- Later in debate ---

[Vicky Ford (Chelmsford) (Con)]

It is an honour to speak in this debate. It is also quite challenging, because we have heard from a number of people with deep legal experience, many of whom are hon. and learned Friends, and I am not a lawyer. However, I speak as someone who has a vast amount of negotiating experience. I spent eight years in the European Parliament leading international negotiations—in fact, I participated in more European negotiations than any other Member of that Parliament at that time—on top of 15 years of commercial negotiations, many of which were also international.

As a negotiator, I know how important it is to be able to seek legal advice as one goes along, not just on the final deal but on the deal as it develops. Because of that legal advice, we sometimes change our strategy, and the nuances can have an impact on the final deal. As a negotiator, I know it is important to be able to play our cards close to our chest. Sometimes, if we are forced to disclose our position too early, it can tie us down and remove negotiating options.

It is therefore extremely important that we do not force those on our side of the negotiating table to disclose issues that those on the other side are not having to disclose. These are the most complex negotiations for a generation, and I personally think it is deeply impressive that all parties are still talking to one another, given how complicated the negotiations are. We should not force one side to disclose what the other side does not have to disclose.

The second reason that I am concerned about the motion is that I have spoken to lawyers about the precedent that this could set in other situations. Many Members of Parliament are lawyers, and we know that people go to lawyers for advice on all sorts of things—family law, property law—and that they do that in confidence. It is really important that that confidence should not be broken. We should not force a lawyer to breach that confidence, because that would set an incredibly difficult precedent for other areas.

[Joanna Cherry]

Is the hon. Lady aware that the privilege attaches to the client and not to the lawyer? It is for the client to decide whether to waive the privilege. We are not asking the lawyer to waive the privilege; we are asking the Government—the client—to do so. That is a crucial distinction.

[Vicky Ford]

Let me take this further, and move on to the issue of transparency. I believe that transparency is enormously important, and it is important that all Members should understand the full legal ramifications of the deal that is negotiated before we hold our vote. After all, the relationship between the EU and the UK is vital to all of us, and there are highly sensitive areas involved, especially for Northern Ireland, a place that is dear to my heart. That is why it has been extremely helpful that the Government have today clarified that, before we vote, there will be a full and reasoned position on the legal situation and especially on the impact for the Good Friday agreement and the commitments to Northern Ireland. That is absolutely right. Furthermore, I am pretty convinced that before we get a vote, every other QC in the country will have emailed each of our inboxes, and that the noble Law Lords down in the other place will have given their most eminent thoughts throughout the night, which we will be able to read in Hansard. I have no doubt that we will have a vast amount of legal opinion at our fingertips.

Although I support the call for transparency, the final reason that I will not vote for the motion today is that it is incredibly uncertain and unclear. In my experience of international negotiations, and indeed all negotiations, the devil is in the detail. British negotiators have a strong reputation for getting the detail right. I thank the right hon. and learned Member for Holborn and St Pancras (Keir Starmer) for clarifying some of the issues in the motion during his speech, but there are at least four uncertain areas in it. First, is the motion calling only for the final legal advice, or for “any legal advice”, as it states? Secondly, is it calling for the advice on the final withdrawal agreement, as some people have suggested, or for the advice on the “proposed withdrawal agreement”, which is what it says in the motion? If it is the latter, that would include all the advice given during the negotiations. That is what the motion is asking for, and it is important that we should keep our reputation for detail strong.

The third failure in the motion is that it is unclear whether it is calling for all the papers to be “laid before Parliament”, which is what it says, or for them to be made available to MPs, which is what I have heard the Opposition say they would now accept. That would be similar to the process by which we were able to access the impact assessments.

The fourth problem I have with the motion is that it is not clear when the advice would need to be made public. Would it be during the negotiations, or now, or after the negotiations have been finalised? I believe that the Opposition spokesman tried to clarify those points from the Dispatch Box, but that is not good enough. This is a serious vote on a serious issue relating to the most crucial negotiations of our lifetime, and this type of motion is simply not good enough.

--- Later in debate ---

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

It is always a pleasure to follow the hon. Member for Witney (Robert Courts), who speaks eloquently and courteously, as always, although I disagree with him on this occasion. I rise to support the Labour party’s motion. In doing so, I declare an interest. Like many who have spoken in this debate, I have previously acted as a Government lawyer. I was a standing junior counsel to the Scottish Executive—as they used to be known before my colleagues came to power and changed the name to the Scottish Government, and quite right, too—and have acted as Crown counsel and one of the Lord Advocate’s deputies.

I understand the particular concern that Government lawyers have, but I have also acted for members of the public. I know there is a balance to be struck and that the interests of the Government are not always synonymous with the public interest. In this particular case, I do not think the interests of the Government are synonymous with the public interest.

My hon. Friend the Member for Glenrothes (Peter Grant) has already referred to the difference between the ministerial code in the United Kingdom and the ministerial code in Scotland on the disclosure of legal advice. The UK Cabinet Office ministerial code says:

“The fact that the Law Officers have advised or have not advised and the content of their advice must not be disclosed outside Government without their authority.”

That is an important qualification, and I will come back to what “Erskine May” says in a second.

By contrast, the ministerial code in Scotland has a section about exceptions to the convention of not disclosing legal advice:

“If, in exceptional circumstances, Ministers feel that the balance of public interest lies in disclosing either the source or the contents of legal advice on a particular matter, the Law Officers must be consulted and their prior consent obtained. Such consent will only be granted where there are compelling reasons for disclosure in the particular circumstances.”

The ministerial code in Scotland envisages that there can be disclosure in exceptional circumstances. Having regard to what “Erskine May” says, and having regard to some of the precedents we have discussed today, I would suggest that that, in effect, is what is recognised by this House. “Erskine May” says that

“the opinions of the law officers of the Crown, being confidential, are not usually laid before Parliament, cited in debate or provided in evidence…and their production has frequently been refused; but if a Minister deems it expedient that such opinions should be made known for the information of the House, the Speaker has ruled that the orders of the House are in no way involved in the proceeding.”

“Erskine May” recognises that the UK Government can make the sort of exception that the Scottish Government are entitled to make in exceptional circumstances, and some historical precedents have already been mentioned today.

What I am saying is that these are exceptional circumstances. Again, as my hon. Friend the Member for Glenrothes said, another parliamentary convention has already been ridden over roughshod in relation to Brexit. The Sewel convention states that normally the Scottish Government should be consulted. The Government have said this is not a normal situation, and they may well be right. Of course, there is great legal debate about what “normally” means in the Sewel convention but, by the Government’s position, we are not in normal times. No, we are in exceptional times. Even if there were no precedent—and there are precedents—it would be appropriate for the Government to publish their legal advice on the finalised deal, if there is one, in full.

In this event, very unusually, I find myself in agreement with DUP Members. The people of Northern Ireland have a right to know this advice in full, as do the people of Scotland, England and Wales. It is this House that will make the decision on whether or not to accept that final agreement, not the Government. They are in danger of mixing up the functions of the Executive and the legislature in relation to Brexit.

Reference has been made to the case in which I am a petitioner, and which is going to the European Court of Justice, on the question of the unilateral revocability of article 50. The Government have fought that case tooth and nail, because they say it is up to them whether or not to revoke article 50, but the highest court, Scotland’s supreme court, has said, “No, it is up to this Parliament.” Just as it will be up to this Parliament whether to revoke article 50, it is up to this Parliament whether or not to accept the deal, so this Parliament should be given the advice that the Cabinet has been given. That is why I cannot agree to the compromise put forward by the Government Front Bencher, because it is a matter of trust now. As has been said by the hon. Member for Pontypridd (Owen Smith), the referendum in 2016 was won on the back of what we now know to have been some lies, some misinformation and, in some cases, breaches of electoral law. Unlike in the Scottish independence referendum, there was no prospectus as to what Brexit would look like. People have lost trust in the process. If trust is to be won back, this Parliament and indeed the people must be fully informed about the deal that is reached before the final decision is made to endorse the deal.

Legal privilege can be waived by the client, and that is what we are asking the Government to do. In the public interest, in these exceptional circumstances, we are asking them to waive that privilege. I am conscious that I have less than a minute left, but on the compromise offered from the Government Front Bench, I have three specific questions I would like the Solicitor General to answer. First, will what the Government are offering be made available to the devolved Governments? Secondly, how much detail will be in the legal advice that they are going to put forward—will it be sufficient for those of us who are going to be looking at it carefully to take an alternative opinion on it? Thirdly, if the Attorney General is going to come to this House to answer questions on it, will he give answers that are meaningful? Ministers so often do not give us a meaningful answer. In addition, will the Government allow a reasonable amount of time to elapse between the provision of their written document and the oral statement, so that the written document can be studied in order that properly informed questions may be asked?

October EU Council

Joanna Cherry Excerpts

Monday 22nd October 2018 Commons Chamber

[The Prime Minister]

I know that this is an issue that my hon. Friend has campaigned on in particular. I am very happy to reassure him that it is this Conservative Government who will guarantee the rights of EU citizens, deal or no deal.

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

On the question of a second referendum, given where we are now, and given the promises that were made by the Leave campaign, does it not bother the Prime Minister at all that many of those who voted to leave in 2016 did so on a false prospectus?

[The Prime Minister]

The referendum was held and there were lively and passionate campaigns on both sides of the argument. We gave the people the decision. The people took their decision. We should now deliver on it.