Overseas Operations (Service Personnel And Veterans) Bill

Debate between Joanna Cherry and Stewart Malcolm McDonald

2nd reading & 2nd reading: House of Commons
Wednesday 23rd September 2020 Commons Chamber

[Stewart Malcolm McDonald]

That is because I know what I am doing, Madam Deputy Speaker, as you well know.

Let me say this to the Minister for Defence People and Veterans. We always try to find the maximum consensus, but I rather suspect that we just cannot agree on this Bill. He is not willing to change it to the degree I would like to see it changed, which in essence would mean scrapping it and letting the review come forward. When we table amendments in Committee, it will be interesting to see what they say; I am sure the Minister will be interested to read them, and it will be interesting to see how the Government approach them. As I say, we all know what is going to happen: the Government have a huge majority and are not going to accept anything that they feel they do not have to. We do not agree with them that the Bill is moderate at all, which is why we will vote against its Second Reading tonight.

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

The Minister for Defence People and Veterans is keen that we look at the Bill itself. Does my hon. Friend agree that the Bill creates a presumption against prosecution for a class of defendants, placing one group above the other in the eyes of the law? Does he agree that that is unprecedented in our domestic legal systems, whether we speak of England and Wales or the separate and independent jurisdiction in Scotland? That is unprecedented and that is what is objectionable about the Bill: it does away with the idea of equality before the criminal law, and that is wrong.

[Stewart Malcolm McDonald]

My hon. and learned Friend is absolutely correct in saying that. I would go further and say that actually, in terms of the whole scope of the Bill and how it protects the Ministry of Defence from claims coming from members of the armed forces themselves, as brilliantly illustrated by the shadow Secretary of State in his speech earlier, it is not welcomed by those people who need protection. We all agree that they need protection, but we cannot agree with the Government that this Bill is the way to do it.

The context is this: this Parliament has no power to prevent the Government from entering a discretionary conflict. There is no war powers Act. When Tony Blair took the country to war—a war that, in an interesting contribution earlier, the Defence Secretary said he now accepts was illegal, but which his party supported at the time—he at least came to this Parliament and held a vote. When the airstrikes in Syria took place in Easter 2018 under the former Prime Minister, the right hon. Member for Maidenhead (Mrs May), that was done away with; that discretion was used without any parliamentary consent.

On the issue of special forces oversight or lack thereof, we stand out as unusual, even by comparison with a country such as the United States with zero oversight of special forces operations. As my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) said earlier, this Bill creates two levels of playing field for people in this country. This is all unwelcome and highly unusual. There is a reason that no other country has a version of this Bill on its statute book or before its national legislature. Members of the armed forces are rightly expected to perform to a high standard and members of the armed forces are right to expect a high standard of us in this House, but for the reasons I have outlined we will vote against this legislation tonight. Members of the armed forces are entitled to a better standard than this.

Sewel Convention

Debate between Joanna Cherry and Stewart Malcolm McDonald

Monday 18th June 2018 Commons Chamber

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

I got the impression over the weekend that Government Members and the metropolitan commentariat were rather surprised at the strength of feeling displayed by SNP MPs last week at the pitiful amount of time that was allowed for debate of these matters, but they should be in no doubt that that strength of feeling is felt across Scotland. On the flight home and in my constituency at the weekend, I was inundated by members of the public congratulating us on taking the stance that we did. In douce, undemonstrative Edinburgh, I was unable to get my messages done in Marks & Spencer at Slateford for people coming up to me wanting to shake my hand and tooting their car horns, shouting out that we had done the right thing.

Lest it be thought, then, that this is only about what we individual SNP Members think, I want to devote what little time I have to some of the views held by members of the Scottish commentariat, Scottish civic society and a prominent Scottish constitutional lawyer. The position was neatly summed up at the weekend by the distinguished journalist and commentator Kevin McKenna, who is not afraid to criticise my party when he does not agree with it, when he wrote in The Observer at the weekend:

“The UK government has sought to portray the SNP’s anger over the power grab as illusory to the point of non-existent. ‘The 24 powers will eventually make their way to Holyrood, so what’s the problem?’ they ask. The problem is threefold.”

First:

“It could take up to seven years for these powers to return, a period that would outlast a term of government on either side of the border.”

Secondly:

“At any time, during this period the UK government could alter them as they see fit.”

Thirdly and perhaps most importantly:

“A precedent has also been set allowing any UK government to override the Sewel convention by which Westminster won’t legislate on devolved competencies without Holyrood’s permission.”

That is not my view but the view of Mr McKenna.

The Sewel convention provides that Westminster will “not normally” legislate on a devolved matter without devolved consent. I am afraid that an awful lot of nonsense has been talked about what the word “normally” means. Fortunately, the House need not take my word for it; Aileen McHarg, professor of public law at the University of Strathclyde, very helpfully set out at the weekend some of her views on what “not normally” meant. She says it does not mean:

“Goodness me, this situation is a bit unusual; we can therefore ignore the usual constitutional rules.”

It does not mean, she says: “I say”,

“it’s jolly difficult if we have to agree stuff with”

the Scots and

“the devolved institutions; let’s just ignore them.”

Nor does “not normally” mean, she says:

“So long as we make some kind of effort to reach agreement (even if it’s a bit late and we have to be forced into it), it doesn’t matter if we can’t actually reach agreement.”

What “not normally” means is as follows. The Sewel convention is a rule, not merely a description of practice, so the word “normally” has to be understood as an exception to the rule. According to the principles of legal interpretation, we make exceptions to a rule either where the underlying rationale for the rule does not apply or where there is some overriding competing principle.

The rationale for the Sewel convention is protection of devolved autonomy. It is not clear to me or Professor McHarg why the protection of devolution should be suspended by the Brexit vote, particularly when Scots did not vote for Brexit by a majority of two to one. Professor McHarg concludes, on the basis of what few precedents there are, and of the discussions at the time of the enactment of the Scotland Act and in relation to the old Stormont convention, that devolved consent can be overridden only in cases of necessity or where the devolved legislature is abusing its power. There is no evidence that the devolved legislature is abusing its power, and, in order to have frameworks, there is no necessity for those frameworks to be imposed from above.

[Stewart Malcolm McDonald]

Given what my hon. and learned Friend has just informed the Chamber of, could not the Executive in London be accused of abusing their power?

[Joanna Cherry]

Indeed. It is the Executive in London who are abusing their power. In the words of the BBC’s “Reality Check” website, the Sewel convention was “ripped up” and thrown away by last week’s amendments.

I will conclude with a word of warning for the Tories from another commentator, Dani Garavelli, who wrote in The Guardian:

“As for ordinary voters, they may not be greatly exercised about the finer points of the constitution… But they can hear the mood music; they know when their parliament is being slighted. Already frustrated over the democratic deficit that allows Scotland to be taken out of the EU when every part of the country voted remain, many of them will look askance at the dismissive way Conservative politicians behaved in the chamber on Wednesday.”

In relation to displays of anger from me and others last week, she says that such anger

“will be echoed around much of the country. Anyone who doesn’t understand the potential impact of such condescension on the psyche of Scottish voters wasn’t paying enough attention last time around.”

I look forward to putting pictures of their jeering faces on the leaflets at the next independence referendum.

Refugee Crisis in Europe

Debate between Joanna Cherry and Stewart Malcolm McDonald

Tuesday 8th September 2015 Commons Chamber

[Joanna Cherry]

I should like to make a little more progress; then I might give way.

I do not believe that people in the United Kingdom will tolerate a situation in which the Government simply wash their hands, Pontius Pilate-like, and walk by on the other side of the street in the face of the desperate plight of those people who are now in Europe. The point has already been made that the UK has a proud history of taking in refugees, from the Kindertransport of the 1930s through to the Ugandan refugees in the late ’70s. Even Mrs Thatcher’s Government took in 10,000 Vietnamese boat people after a bit of pressure was applied. The people of the United Kingdom will be ashamed if this Government do not relent and take a fair share of the refugees who have come to Europe.

We should not use the fact that we are not part of the EU’s borderless Schengen agreement, or that we are not at present part of the relocation initiative, to distract from what is a moral imperative to reach out to those who are suffering and in need, and who are coming to our relatively wealthy continent of Europe seeking sanctuary. They are, of course, coming to the poorest part of Europe, the south, and the people in the south, particularly in Greece, need the support of the richer nations in the north if they are to cope with the crisis that is unfolding on their doorstep.

[Stewart McDonald (Glasgow South) (SNP)]

Another thing that the UK Government could do—I think both sides of the House could unite around this—is put pressure on other states in the region such as Qatar and Saudi Arabia, which are supposed to be Britain’s allies, to take in some refugees. Some of those countries do not even recognise refugees in their constitutions. Does my hon. and learned Friend agree that the southern European states could be helped if the UK Government exerted their influence in that way?

[Joanna Cherry]

Yes I do, but it will be difficult to have any great influence when we are not seen to be making an appropriate response to the crisis ourselves.

We are an island Union of nations, and the point has been made that we are at the northern end of Europe and therefore rather removed from the apex of the crisis. We are also Europeans, and we will continue to be Europeans even if this Government take us out of Europe following their referendum. We have been good Europeans in the past, so let us not dishonour our forebears by turning our backs on those in need who are arriving on our doorstep in numbers bigger than at any time since the second world war.

Yesterday, the House debated the European Union Referendum Bill. In the context of that debate, we should be asking what sort of Europe we want to see. The Scottish National party is in no doubt that what Scotland wants—and, I believe, what the United Kingdom wants—is a humanitarian Europe that extends compassion to our fellow human beings in their hour of need.