Prorogation (Disclosure of Communications)

Debate between Joanna Cherry and Kevin Brennan

Monday 9th September 2019 Commons Chamber

[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.

EU: Withdrawal and Future Relationship (Motions)

Debate between Joanna Cherry and Kevin Brennan

Monday 1st April 2019 Commons Chamber

[Joanna Cherry]

Yes, I do. That is the purpose of the motion. It is not an SNP motion, although I am absolutely delighted that all my right hon. and hon. Friends are backing it; it is a cross-party motion. It has support from members of every single party in this House, apart from the DUP. If we cannot agree a deal by 10 April, which is the date of the EU Council—everyone must see as a matter of common sense that that is highly unlikely—my motion, if it is passed tonight, will mandate the Government to ask, first, for an extension of the article 50 period. If the EU did not agree to that, the UK Government would be required immediately to table a motion asking this House to approve no deal. My motion goes on to say that, assuming the House did not approve no deal—I think that we can assume that given the many votes that there have been on the matter already—the United Kingdom Government would then be mandated to revoke article 50, before we exit the EU with no deal late on the night of 12 April.

[Kevin Brennan (Cardiff West) (Lab)]

I am very sympathetic to the idea that we need a backstop in extremis to prevent no deal from happening, but can the hon. and learned Lady explain why, later in her motion, she goes on to introduce a level of complexity and a prescriptive route? Is she really wedded to that process, or is she more flexible about how that might work?