Safety of Rwanda (Asylum and Immigration) Bill

Debate between Joanna Cherry and William Cash

Committee of the whole House
Wednesday 17th January 2024 Commons Chamber

[Sir William Cash]

Without prejudice to the content of what the hon. and learned Lady is saying otherwise, may I simply say in relation to her notwithstanding clause that I am extremely glad that the Scottish eagle has landed?

[Joanna Cherry]

I certainly will not be supporting the other notwithstanding clauses in the Bill, but I felt that it was perhaps time that we had one that benefited Scotland for a change.

My amendments are designed to protect Scotland’s courts and constitutional tradition. They are there to ensure that asylum seekers in Scotland might still enjoy the protection of the courts from the infringement of their fundamental rights. That is what people in Scotland want, and it has been expressed repeatedly through the Scottish Parliament. I am, of course, a Scottish MP and a member of the Scottish Bar, and I am here to do what I can to protect Scotland and its legal system from the extraordinary attack on human rights and the rule of law that this Bill constitutes.

However, I am not a Scottish exceptionalist. I recognise that—as reflected in the House of Commons Library’s excellent legal briefing on the Bill, and indeed in the speech that preceded mine, by the right hon. and learned Member for Kenilworth and Southam—concerns about the impact of the Bill on the rule of law and the constitution are shared by many in England, including many lawyers. For every lawyer cited by Conservative Members in favour of the Bill and the draconian amendments to it, they will find two lawyers who disagree.

The Library briefing, which is an excellent summary of the different legal views on the Bill, concludes:

“Tension between the sovereignty of Parliament to legislate, and the role of the courts in enforcing the rule of law principle that executive bodies must exercise their powers within their statutory limits, may be tempered by restraint on both sides. If either the courts or Parliament ceased to exercise such restraint, significant constitutional uncertainty could result.”

I believe that if we pass the Bill, this Parliament will have ceased to exercise the restraint referred to there—it would be a major departure from such restraint. I predict that, if the Bill passes, we will see what might be an unprecedented constitutional challenge to an Act of the British Parliament.

Safety of Rwanda (Asylum and Immigration) Bill

Debate between Joanna Cherry and William Cash

2nd reading
Tuesday 12th December 2023 Commons Chamber

[Sir William Cash (Stone) (Con)]

The recent Rwanda case is the most recent case on matters relating to parliamentary intentions, the supremacy of law and the rule of law, and the proper application of the rule of law. One claimant—and it requires only one claimant—had his claim dismissed by the Supreme Court on the grounds that parliamentary sovereignty had already undermined his case. The case was about retained EU law, but it actually undermined the case of that claimant. That was a clear indication that the Court was going to take the sovereignty of Parliament first, and that is the key issue in this debate.

It has been said by the courts that sovereignty trumps international law. It is absolutely clear that that is the case. Only this year, the House of Lords Constitution Committee, in paragraph 58 of its report on the rule of law, stated:

“Parliamentary sovereignty means that Parliament can legislate contrary to the UK’s obligations under international law.”

That was a reinforcement of the judgments I mentioned in an intervention, including those of Lord Hoffmann, Lord Bingham and Lord Denning. Our greatest jurists have all come to exactly the same conclusion. The President of the current Supreme Court, which dealt with the Rwanda case, said the same thing in paragraph 144 of its judgment in that case:

“the principle of legality does not permit a court to disregard an unambiguous expression of Parliament’s intention such as that with which we are concerned”.

So, the position is completely clear and those cases—

[Joanna Cherry]

rose—

[Sir William Cash]

Before the hon. and learned Lady seeks to intervene, I want to get this quite clear. The Miller case was on a different set of circumstances. Not only that, but it has been overtaken by subsequent constitutional judgments by the Supreme Court itself. I want to quote now from Lord—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I will give way. The hon. and learned Lady can say what she likes.

[Joanna Cherry]

It is refreshing to know that my article 10 rights have not been withdrawn yet. The point is this. The hon. Gentleman may be right, as a matter of domestic law of England that the sovereignty of the English Parliament allows England to change its domestic law internally. [Interruption.] He may be right; it is in dispute as we know. What he is definitely not right about is that this Parliament cannot domestically legislate to take us out of our international legal obligations without doing so clearly. The Supreme Court has been crystal clear about that. There are two separate matters here: domestic law and international law. If the Government want to breach their international legal obligations, am I not right, based on Supreme Court authority, that they will actually have to withdraw from the treaties to which they are committed?

[Sir William Cash]

Absolutely. I am glad that the hon. and learned Lady mentioned the fact that an unambiguous statement—an explicit statement, as Lord Sumption puts it—on the position in interpreting the intentions of Parliament carries enormous weight and, in fact, overrides international law obligations.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No. I am going to read out—

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

No, I will not give way.

I am going to quote directly from Lord Hoffman himself in relation to an ECHR case. [Interruption.] This is the case of R. v. Lyons 2003. He states:

“the Convention is an international treaty and the ECtHR is an international court with jurisdiction under international law to interpret and apply it. But the question…is a matter of English law. And it is firmly established that international treaties do not form part of English law and that English courts have no jurisdiction to interpret or apply them…Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law…in a way which does not place the United Kingdom in breach of an international obligation”—

but, and this is absolutely crucial—

“The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.”

That is what the law is. That is a straightforward interpretation and statement.

There is an issue that I want to come to. I praise my right hon. Friend the Member for Newark (Robert Jenrick) for his courage and for a brilliant speech, and endorse every word he said, but I would also like to say this: we want the Government to succeed in their legislation, but it has to be legislation that works. As I have explained, in relation to the Supreme Court, the whole question turns on the intention of Parliament and the sovereignty of Parliament. It is a question of justiciability as well. I put to my hon. and learned Friend the Minister for Illegal Migration that, when it comes to it, we can make changes to the Bill. It is possible to extend the scope of the Bill, and I hope he will have discussions with the Clerk of Public Bills, with whom I have had discussions already.

It is absolutely clear that the scope of the Bill will determine the amendments, whether from the Government or Back Benchers. It matters that we are entitled to have a proper debate on this fundamental question about international law and its relationship to sovereignty. The Bill, if enacted after Royal Assent, could be scuppered by one claimant and by the courts if the words of the Act are not clearly expressed and explicit in ruling out any such claim, for example under clause 4 or any other heading, such as rule 39 and all the other things we will no doubt trot out in Committee if we get there. We therefore have to address the question of the scope of the Bill, because that is the way that Parliament functions. That is the way Mr Speaker must decide on the selection of amendments, so it is crucial.

There is much more that I could say, but I let me end by drawing attention to the global issue. The fact is that throughout the European Union there is a real problem. They are tearing their hair out, because on the one hand they have the charter of fundamental rights, and on the other they are bound by qualified majority voting to comply with the situation, which is actually not the same for us. We have a unique opportunity, in our parliamentary system and with the sovereignty of Parliament, to be able to make amendments and provide domestic law that will satisfy the voters of this country.

Illegal Migration Bill

Debate between Joanna Cherry and William Cash

Committee stage
Monday 27th March 2023 Commons Chamber

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

The hon. Gentleman is, of course, expounding a very Anglocentric view of sovereignty, but I will leave that to one side for the moment.

Is it not a legal flaw in the hon. Gentleman’s argument that at least some of the people who come to this country in small boats come not as immigrants but to seek asylum? The United Nations High Commissioner for Refugees says this Bill

“would amount to an asylum ban—extinguishing the right to seek refugee protection in the United Kingdom for those who arrive irregularly, no matter how…compelling their claim may be”.

Does the hon. Gentleman not accept that?

[Sir William Cash]

As I just said, I believe it is very important properly to protect genuine refugees. The problem we have been presented with over the last couple of years or so is that it is blatantly obvious that quite a significant number—I cannot put a precise figure on it, but it is very substantial and runs into the tens of thousands—have a serious case to answer in respect of their status.

[Joanna Cherry]

Unfortunately for the hon. Gentleman, the facts simply do not support what he is saying, because the majority of people arriving in small boats who have had their asylum claim resolved have had their claim granted. That is the evidence.

[Sir William Cash]

That is certainly the case, but it is equally the case that we have 160,000 unresolved asylum cases. It is also true that there is no persecution in France on this account.

As the Government have rightly said, the Labour party voted against the Nationality and Borders Act 2022, wants to scrap the Rwanda deal and opposes the Government’s Bill to detain and remove people swiftly from the UK. This amounts to demonstrating that the Labour party is in favour of open borders and is not on the side of the British people, who want us to deal with this problem.

The current Leader of the Opposition, in an article in Counsel on 9 January 2015, wrote, contrary to what the former Lord Chancellor and Home Secretary said, that the sovereignty of Parliament has nothing at all to do with the Human Rights Act. He clearly does not understand what the sovereignty of Parliament is, or the enactments and case law involved. Quite clearly, the statute itself was not intended to lead to circumstances in which illegal migration is not prevented but almost encouraged, to the profound detriment of practical control over our borders.

I tabled an amendment to the Nationality and Borders Bill in December 2021 that had a clearly expressed “notwithstanding” formula. The amendment was strongly supported by Conservative Back Benchers and would have greatly helped to ensure the flights to Rwanda. With this new Bill, we have a further opportunity to tackle the problem of illegal migration. This Bill is necessary because of the smuggling and criminality of the unscrupulous gangs that exploit migrants and cause death.

In addition, because of the consequences of the failure to control illegal migration, we have endured monumental expenditure of up to £6 million a day, disruption to local services, hotels, health services and social housing, and instances of criminality. It does no good to perpetuate a situation with such adverse consequences for our constituents and our voters, and the Government understand that.

Indeed, I am confident that, when the Bill is enacted, the courts will apply it and court procedures will be adapted accordingly, provided the intention of the words used in the Bill, as enacted, are clear, express and unambiguous, as I propose. It is not appropriate for the current situation to continue to the point where, as I have indicated in the past, the number of illegal migrants is growing exponentially.

My amendments, and further discussion with the Government, are conducive to resolving the issues properly, fairly and reasonably—with an appeal system and other measures, as I shall mention in a moment, and in line with domestic and international law—and to removing the unintended and unexpected legal consequences of the Human Rights Act and the courts’ rules in respect of illegal migration in small boats, which together have led to the breaching of our borders on an unprecedented scale. That is emphatically not in our national interest, and it was not anticipated when the Human Rights Act was originally passed. My amendment would ensure that what Parliament intends actually happens.

--- Later in debate ---

[Joanna Cherry]

I will give way in a moment. I just want to develop my point and then I will give way to the hon. Gentleman, because I know that we have been arguing about this for years. This is an important point to make.

It is sometimes assumed that this Parliament just took on the character of the English constitution when it unified with the Scottish Parliament. Perhaps it is worth considering that there are other notions of sovereignty. In my country, the people are sovereign, not the Parliament, and they can choose to share their sovereignty with, for example, the Edinburgh Parliament, this Parliament and other international institutions. The endless obsessing about the sovereignty of Parliament is not particularly helpful. Where I really disagree with the hon. Gentleman is in this: I think that the Human Rights Act was an elegant solution to fulfilling our rights under the convention, while also respecting the sovereignty of this Parliament.

[Sir William Cash]

I wish to reply to the hon. and learned Lady by saying that the sovereignty of the United Kingdom Parliament rests with the United Kingdom Parliament. I know that she would quite like to leave it, but, on the other hand, she is bound by it, and the European Union (Withdrawal Agreement) Act 2020 specifies quite clearly that the sovereignty is guaranteed.

[Joanna Cherry]

The Union between Scotland and England was freely entered into. I know that some people are under the misapprehension that now it is some sort of “Hotel California” situation, where we can check out but cannot leave, but that is a fundamental misunderstanding of the nature of the Union. The views that I am expounding about sovereignty are not just my eccentric views, but the views that have been expounded by many well-respected Scottish jurists, as the hon. Gentleman knows. It is worthwhile sometimes to take a step back. With all due respect to some of my English friends, they get a bit hysterical about parliamentary sovereignty. Sovereignty can be shared and, ultimately, I believe that sovereignty lies with the people. I will just leave it at that.

United Kingdom Internal Market Bill

Debate between Joanna Cherry and William Cash

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 29th September 2020 Commons Chamber

[Sir William Cash]

I do not have time, I am afraid.

At the same time, there have been a number of UK precedents, which I have explained already. I do not have the time to go into them; I will attempt, as other Members will have to, not to go into huge detail, but I will give a few examples. In 1945, a Finance Act passed by the Labour party overrode international law. The same applied to the Indian Independence Act 1947 and the Burma Independence Act 1947. In fact, in the case of India, more than 400 treaties were broken.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

I assure the hon. and learned Lady that I am not giving way. I am very happy to do so normally, but not today.

Furthermore, a Conservative Government, in the Income and Corporation Taxes Act 1988, provided clauses that were notwithstanding anything contrary to the arrangements of the Act. It goes on. It is a substantial list.

I will go further. Those who are interested can look at my previous contributions to other debates, where I extensively describe the myriad occasions when the EU itself has broken international law and, furthermore, when EU member states have egregiously broken international law and admitted it in their own Parliaments. For example, Helmut Schmidt, in the Bundestag, could not have been clearer, going through every single treaty that Germany deliberately broke in defence of its own vital national interest, because that is itself a reason why national law can have a degree of predominance over international law.

National and constitutional law, in certain circumstances —where it affects sovereignty, as in this case in the United Kingdom—can prevail against international law. I am extremely grateful to my good friend, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), who I know recognises this. It has taken a bit of time for us all to come to terms with that, because it is a bit complex, but the reality is that it is well established in international law itself. The German federal court confirmed this as recently as 2015. I quoted the court in a previous debate, so it is already on the record that it is well within the framework of international law for a country—a democratic country, I hasten to add—to actually override international law in its own vital national interest, and most specifically, as in this case, on questions of sovereignty.

I will therefore just touch on my exchange with the hon. and learned Member for Edinburgh South West (Joanna Cherry). With regard to Miller 1, the Supreme Court unanimously confirmed that, under the dualist approach, treaty obligations only become binding in the UK system to the extent that they are carried out in domestic legislation, and that whether to enact or repeal legislation, and the content of that legislation, is for Parliament alone.

This principle was approved unanimously by the Supreme Court in Miller 1.

United Kingdom Internal Market Bill

Debate between Joanna Cherry and William Cash

Monday 21st September 2020 Commons Chamber

[Joanna Cherry]

I rise to speak in favour of amendments 43 and 44, in my name, and to support the amendments tabled by the Scottish National party, our friends from the SDLP and our friend from the Alliance party.

I will focus my comments on my amendments, which I tabled to work out just how far this Government are prepared to go in ousting the jurisdiction of the domestic courts in relation to judicial review and review under the Human Rights Act in clause 45, as it appears on the face of the Bill. I also wish to highlight, as I mentioned in an intervention on the Minister, that, in so far as clause 45 seeks to restrict judicial review in Scotland by circumscribing the supervisory jurisdiction of the Court of Session, this not only trespasses into devolved territory but may well breach another treaty: the treaty of Union between Scotland and England, article 19 of which preserves the independence of the Scottish legal system.

Before I address my amendments in detail, for the avoidance of doubt, my primary position—and I find myself curiously on the same ground as the right hon. Member for Maidenhead (Mrs May)—is that clauses 41 to 45 should not stand part of the Bill. Everything we heard from the right hon. Member for Chingford and Woodford Green (Sir Iain Duncan Smith) was designed to hide from us the fact that we are talking about a bilateral treaty that was entered into by the Prime Minister and the United Kingdom less than a year ago, to deal with a specific situation that arose between the United Kingdom and the European Union; and the most controversial part of that treaty—the one dealing with Northern Ireland and the north of Ireland—is the one that this Government are seeking to drive a coach and horses through. That is what we are talking about, and that is what is so wrong.

[Sir William Cash]

Will the hon. Lady give way?

[Joanna Cherry]

I will make some progress.

Such excuses as those that the Government’s Law Officers who remain in post have sought to make for this do not stand up. I am very proud, as a member of the Scottish Bar, that Lord Keen of Elie resigned last week, and I am proud of the reasons he gave for his resignation. The only thing I would say to him is, “What took you so long, Richard?”, but apart from that I am very proud. I think it will be very difficult for the British Government to find anybody of suitable seniority from the Scottish Bar to step into his shoes, but I am waiting with some amusement to see who they might find.

--- Later in debate ---

[Sir William Cash]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, I am going to make some progress.

It is what we would call at the Scottish Bar a load of old mince. That is not just my view; as I said in an intervention, it is the view of the United Kingdom Supreme Court, which said in the first Miller case, at paragraph 55, that

“treaties between sovereign states have effect in international law and are not governed by the domestic law of any state.”

I am terribly sorry to disappoint Conservative Members, but no matter how much they love their doctrine of parliamentary sovereignty—no matter how much it means to them—it cannot trump the obligations freely entered into by their Government under international law.

--- Later in debate ---

[Sir William Cash]

Will the hon. and learned Lady give way?

[Joanna Cherry]

No, I am not going to give way.

It simply does not work that way: Britannia does not rule the waves any longer and has not done so for some time.

I regret to say that while I have the greatest respect and the highest regard for the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the Government amendment that his efforts have secured is wholly inadequate to meet both domestic and international concerns about this Bill. I cannot do much better than repeat what the Irish Foreign Minister said this afternoon: a Government with an 80-seat majority having a parliamentary lock is not much of a reassurance to any of us. I really do not think I need to say any more than that. Once more, we have a ruse to solve the problems of the Conservative party rather than a ruse to address our international legal obligations.

My amendments 43 and 44, as I said, seek to deal with clause 45. The English Bar Council and the Law Society of England and Wales have said of clause 45 that it

“would exclude judicial review of any regulations made under clauses 42 and 43 on grounds of incompatibility with domestic law…as well as international law.”

That exclusion of judicial review would also mean excluding any human rights review under the Human Rights Act or, indeed, the Equality Act 2010. As my hon. Friend the Member for Belfast South (Claire Hanna) said in her very eloquent speech, human rights are of course integral to the Good Friday agreement. It is a travesty that regulations made under clauses 42 and 43 should not be subject to judicial review or to human rights review across Great Britain, but a particular travesty in Northern Ireland. It undermines not just the principle of the rule of law but the principle of access to justice. It also contravenes article 4 of the withdrawal agreement, which the British Government freely signed up to, in which they undertook to ensure a right for individuals to rely directly on withdrawal agreement provisions.

It is difficult to be certain how the courts would interpret an ouster clause such as clause 45, but precedent suggests that it would be quite hard for them to uphold it unless it is expressed in unequivocal terms. My amendments seek to clear this up. Amendment 43 would exclude the Human Rights Act and the European convention on human rights from the definition of domestic and international law, and amendment 44 would ensure that

“nothing in Clause 45 ousts the jurisdiction of domestic courts in respect of judicial review of regulations made under Clauses 42 and 43.”

Subsequent to my tabling those amendments, the Government tabled amendments 64 and 65, which appear to acknowledge that judicial review claims could still be brought in certain limited circumstances. I am interested to hear from the Minister what those circumstances would be. Do they include the normal judicial review grounds of illegality, irrationality or procedural impropriety, or will they also include review on the grounds of human rights? I look forward to hearing from him on that.

My final point is the most important point from a Scottish point of view. In so far as clause 45 seeks to interfere with judicial review in Scotland, it is interfering with a rather different beast from judicial review in England: the inherent supervisory jurisdiction of the Court of Session in Edinburgh. In doing that, it strays into devolved territory and would therefore require a legislative consent motion, which I very much doubt would be forthcoming. Put simply, the Scottish Parliament is not in the business of ousting the court’s jurisdiction on judicial review or human rights grounds—nor should it be and neither should this Parliament.

Most importantly from a Scottish point of view, the supervisory jurisdiction of the Court of Session is an inherent jurisdiction, which is not conferred on it by legislation but has been there since its inception in 1532. It therefore predates the treaty of Union between Scotland and England in 1707. Legislation seeking to narrow the scope of that inherent jurisdiction risks falling foul of article 19 of the treaty of Union, which preserves the independence of Scotland’s legal system.

In Scotland, rather to our surprise, we learned from the UK Supreme Court that putting the Sewel convention on a legal footing did not protect us from the Government driving a coach and horses through it. As the legal position stands in the United Kingdom, it seems that the Government can get away with passing primary legislation that interferes in devolved matters without a legislative consent motion. A breach of article 19 of the treaty of Union might be a different matter, however, because the question of whether parts of the treaty are so fundamental that they cannot be overridden by an Act of this Parliament has been considered by courts north and south of the border, but never entirely resolved.

I simply remind Members that the doctrine of the supremacy of Parliament is an English doctrine. Even Dicey, the great high priest of parliamentary sovereignty, was prepared to recognise that those who framed the treaty of Union between Scotland and England believed in the possibility of creating an absolute sovereign legislature that was still bound by certain unalterable laws. Many of us in Scotland believe that one of the unalterable laws of the treaty of Union is that this Parliament cannot interfere with the inherent jurisdiction of the Court of Session.

Both those problems—the in-roads into the devolved competence and the undermining of article 19 of the treaty of Union—will continue, notwithstanding Government amendments 64 and 65. I suspect that the Government have not really thought about that because, let us be honest, they do not often think about the impact on Scotland of what they want to do. Many people in Scotland, including my fellow members of the legal profession, will see that as another example of the Government’s total disregard for devolution and for Scotland’s separate and distinct institutions.

That is yet another reason why for Scotland the only way out of the mess that the Conservative and Unionist party has created over Europe is independence. I am glad that so many more people in Scotland are realising that daily. [Interruption.] It is a terrible dreadful bore for Conservative Members, but I remind them that we spend an awful lot of time listening to them bang on about the European Union and how it prevents them from having their way. Well, the Scots are pretty sick of this Parliament preventing Scotland from having its way.

United Kingdom Internal Market Bill

Debate between Joanna Cherry and William Cash

Tuesday 15th September 2020 Commons Chamber

[Sir William Cash]

If Euro-integrationism were to get in the way, that would be a problem, but on the question of whether the UK Government are engaged in some kind of power grab while depriving the devolved Administrations of a say, the answer to that is no, too.

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

Will the hon. Gentleman give way?

[Sir William Cash]

Wait just a minute. The Office for the Internal Market’s provisions will be available to all four Administrations and legislatures on an equal and purely advisory basis. It will provide information to support separate political or legal processes, to resolve any disagreements and to enable intergovernmental engagement. Subject only to my overriding concern that in no shape or form should we end up having a continuation of European Commission decision making, authorisation processes and the rest, which have severely inhibited our capacity to compete effectively throughout the world—and for that matter within the United Kingdom as a whole—I believe that the arrangements here will respect the devolved Administrations on the basis that I describe.

[Joanna Cherry]

To take the hon. Gentleman back to his comments a moment ago, when he lectured myself and my colleagues on the importance of being part of the same political union in order to trade freely and competitively, if that applies to Scotland in relation to the United Kingdom, why does it not apply to the United Kingdom in relation to the European Union? Can he explain that?

[Sir William Cash]

It is a good question. In fact, I will answer it the other way: why on earth would the people of Scotland—

[Joanna Cherry]

No, answer my question.

[Sir William Cash]

No, I am going to put it the other way around and do it my own way. Why on earth would the Scottish people, in their desire to obtain independence from the United Kingdom, actually want to surrender to the European Union, which discriminates against us day in, day out?

[Joanna Cherry]

I am going to answer the hon. Gentleman’s question. The Scottish National party wants Scotland to remain part of the European Union—a single market of more than 500 million consumers. The SNP does not wish to put up trade barriers with England. It is his party that wishes to enforce upon us trade barriers if we dare to exercise our democratic right of self-determination, which he has spent the last 40 years banging on about in this House for England.

[Sir William Cash]

If I may say so, not unsuccessfully.

[Joanna Cherry]

That remains to be seen.

[Sir William Cash]

I am very happy to remain to be seen and to be heard. I will give an example of a company in my constituency that, because of certain economic problems, found that it needed help and wanted some state aid and grants and things of that kind. It so happened that the company owned another company that happened to be in Ireland, and strangely enough, when it came to it and applications were made—I do not know all the details, but this is the general thrust of it—the company in the United Kingdom that needed the benefit of state aid and subsidy unfortunately did not get it, but the company in Ireland did.

The point I make is simply that it seems most peculiar to me that a system that is completely fair should have what I regards as such wanton discrimination in favour of one part of the European Union as compared to another.

[Joanna Cherry]

Will the hon. Gentleman give way?

[Sir William Cash]

Just a minute. I think the hon. and learned Lady is probably exhausting herself by her interventions. I gave the House but one example yesterday, on the issue of Lufthansa. There is a body of opinion and evidence demonstrating the serious discrimination that goes on, although I make the point that European Court of Justice cases on this have gone both ways. However, I think it is very important that we are absolutely clear and certain—because it affects jobs, businesses and people who work for the companies concerned—that the national interests of the United Kingdom, in our mutual interests, are reflected in the decisions taken by whatever the competition authority may be. I know that the previous Administration had in mind the idea of providing for some special reserved powers, which this Government have now decided should be displaced to ensure that we have a proper system—with proper external and internal advice that will be provided by the new Office for the Internal Market within the Competition and Markets Authority—in order to guarantee that we can be world-beating competitors. We have to be able to trade across the world as we have done.

If I may say this to the very distinguished Scottish National party Members, I am sure that they will not forget that Adam Smith was the Scotsman who defined the whole nature of free trade and the ability to compete effectively. The tradition in Scotland has always been to support the ideas of fair and free competition, and that is the essence of these provisions. I am afraid that I cannot come up with an example from Wales, but I am sure there is one. What I can say is that the objects of the Office for the Internal Market will not override decisions made by the devolved Administrations. That is my understanding, and we will hear what the Minister has to say.

Business of the House

Debate between Joanna Cherry and William Cash

Wednesday 3rd April 2019 Commons Chamber

[Joanna Cherry]

I will not give way to the right hon. Lady because she persistently refuses to give way to me and I do not want to take up too much time, so it is tit for tat I am afraid on this occasion.

I support this business motion and I support amendment (a) because we must keep control of the House, not just for today but, as the hon. Member for Bath (Wera Hobhouse) said, very importantly for Monday. I am one of many people who think the Bill laid before the House is somewhat deficient. It certainly would not give the degree of protection that the amendment I moved on Monday would have, and which also had a Bill behind it, but we are not there and there is not much I can do about that. I may try to amend the Bill later, but it is the best we have for now, and I see it as an insurance policy against the talks between the Prime Minister and the Leader of the Opposition breaking down or coming up with an even more unsatisfactory situation than we are in at present, which I suspect is what is going to happen.

I also very much agree with the hon. Member for Bath and the right hon. Member for Leeds Central that we must secure the indicative votes slot for Monday and we should be doing that particularly to make sure that composite motions are debated and options for the future combined with the option of a second referendum are debated on that day. The majority of political parties in this House support a second referendum, and I include in that the official Opposition, having regard to their conference motion.

I was interested to hear from the evidence that the Secretary of State for Exiting the European Union gave to the Exiting the European Union Committee this morning that even the Prime Minister might now acknowledge that a second referendum or people’s vote has to be an option. It has been a cause for concern to some of us that Labour Front Benchers have seemed less than enthusiastic about that option on occasions, but I know that they have not written it off completely. I entreat them to ensure that it stays on the agenda, and Monday will provide a way of doing that.

I also say to Labour Members that if their leader cannot secure a second vote in his talks with Prime Minister, he will never be forgiven. He will be remembered as the Labour leader who helped to deliver a Conservative Brexit, and I am sure that no one in the Labour party would wish him to be remembered in that way. As things stand, I am prepared to give him the benefit of the doubt, because we do not yet know the outcome of those negotiations. However, I also want a fall-back position, which is that the House of Commons should have control of the agenda on Monday so that we can hold the indicative votes.

I know that a lot of Conservative Members are really worried about the precedent that could be set by today, and I sort of understand their worry, but I would say to them that today we really are in extremis. The whole of the United Kingdom is at serious risk of crashing out of the European Union without a deal, and that would be a disaster for the economies of these islands and for our social fabric—[Interruption.] People are muttering at me that I should vote for the withdrawal agreement, but that is not my mandate. Please try to understand and respect the fact that there are Members of this House who were elected on a manifesto of stopping Brexit. They should please desist from trying to ram their opinions down our throats, because that is not acceptable.

[Sir William Cash]

I much respect the honesty of the hon. and learned Lady, and actually she is right. I have never, in any of the debates on this issue—heavens above, there have been enough of them—criticised the SNP, because I know that it has that manifesto commitment. I also know that its objective is the independence of Scotland. Adding to the point that she has already made, I want to ask her this. If the truncated procedure that we are witnessing now had been applied to, for example, the Scotland Act 2016 or to any amendments to it, would she not have regarded that as an unbelievable travesty?

[Joanna Cherry]

I would, and that is a point that I am coming on to address. I must point out to the hon. Gentleman, however, that the Scotland Act was indeed an unbelievable travesty because, when it passed through this House, 56 of the 59 MPs who represented Scotland here were Scottish National party MPs, yet not a single one of our amendments was accepted. So in fact, the present system can be a travesty, without having this process tacked on to it.

European Union (Withdrawal) Bill

Debate between Joanna Cherry and William Cash

Committee: 1st sitting: House of Commons
Tuesday 14th November 2017 Commons Chamber

[Joanna Cherry]

My amendment 137 seeks to ensure that:

“When interpreting retained EU law after exit day a court or tribunal shall pay due regard to any relevant decision of the European Court.”

The Minister questioned the term “due regard”, but it is not unknown to international law. The Lugano Convention on the mutual recognition on enforcement of judgments, to which EU and non-EU states are signatories, talks about paying “due account”, but I have followed the recommendation of the organisation Justice that it is clearer and better English to talk about paying “due regard”. Under the Human Rights Act 1998, we have a duty to take account of decisions of the Court of Justice, so paying “due regard” to taking account of such decisions is not a phrase unknown.

This amendment is not a Trojan horse designed to continue references after Brexit, and I say that as someone who does not want Brexit to happen. It is designed to create certainty for individuals, businesses and litigants, and also for the judiciary. It would leave it open to British courts to disagree with the Court of Justice’s interpretation, even if its case law was relevant to the case. It would not—as the Government’s current draft does—give an unfettered, politically controversial discretion to consider or ignore Court of Justice decisions as our courts saw fit.

The test set out in my amendment has three advantages. First, it would create legal certainty for individuals and businesses. Secondly, it would provide political cover for the courts. Thirdly, it seems to fit with the preference of the judiciary, who want a clear instruction. In recent evidence to the House of Lords Constitution Committee, Lady Hale, the new President of the Supreme Court, said:

“It should be made plain in statute what authority or lack of authority, or weight or lack of weight, is to be given to the decisions of the Court of Justice of the European Union after we have left, in relation both to matters that arose before we left and, more importantly, to matters after we leave. That is not something we”—

she means “we, the judges”—

“would like to have to make up for ourselves, obviously, because it is very much a political question, and we would like statute to tell us the answer.”

In my submission, under my amendment, statute would tell the judges the answer.

That is not just my view. The Institute for Government looked at the various options and concluded that the wording that I now propose would license courts in the UK to refer to the Court of Justice’s reasoning in future judgments without making those Court of Justice judgments binding on the UK courts—

[Sir William Cash]

rose—

[Joanna Cherry]

I will just finish my point, then I will give way to the hon. Gentleman.

The Institute for Government took the view that that approach was compatible with the objectives set out in the Government’s White Paper on Brexit and in the repeal Bill.

[Sir William Cash]

I just wanted to refer to chapter 12 of the book by Lord Bingham, entitled “The Rule of Law”, which I am sure the hon. and learned Lady is aware of, in which he criticises Lady Hale for her view on the relationship between Parliament and the judges. Is she aware of that?

[Joanna Cherry]

I am familiar with that book, but I do not think that it has any relevance to what I am saying at the moment. I remind the hon. Gentleman the Lady Hale is the President of the Supreme Court of the United Kingdom, and she has made the point that what she and her fellow judges require from the Government and the House is clarity in the directions as to how they are to treat the future jurisprudence of the Court of Justice of the European Union, because if the guidance is not clear, they will come under the sort of political attack that I am sure the hon. Gentleman, who is a great supporter of the British constitution, would abhor, as I do—although I might actually prefer a Scottish constitution.

As I said earlier, this amendment is not a Trojan horse. It is the result of careful consideration by the organisation Justice and by the Institute for Government. It also has the support of the TUC and, I am delighted to say, the Labour party, as well as the Equality and Human Rights Commission and the Fawcett Society. One reason the Equality and Human Rights Commission is so keen on this amendment is because it is also important for rights protections. It is important to remember that EU law is largely about the rights of individuals. The Government’s position paper, published in the summer, seemed to imagine that EU law was all about disputes between the United Kingdom and the EU, but it is not. Most people who make references to the Court of Justice do so in the determination of their individual rights or their rights as a business.

Leaving the EU: Financial Services

Debate between Joanna Cherry and William Cash

Thursday 3rd November 2016 Commons Chamber

[Joanna Cherry]

Yes, I am concerned about that. Edinburgh’s reliance on financial services is 23.8%, compared with 18.9% in London, 17.3% in Brussels and 17% in Amsterdam. By comparison, Glasgow’s financial services sector is worth about 12.4% to its economy.

This is not fearmongering. Paris and Frankfurt are already angling for some of the jobs that may leave London and Edinburgh if we leave the single market. I attended a briefing last week at which the Irish ambassador spoke. He pointed out that while Britain leaving the European Union poses some problems for the Republic of Ireland, it will also provide some fantastic opportunities for Dublin to attract jobs that we really need in our financial sectors across the UK. In Edinburgh, we really want to hang on to those jobs.

I am happy to say that a lot of people in my constituency are employed in legal and accounting services, which is what I used to do before I came to this place. More than 3,000 of my constituents are employed in the legal services sector. Across Edinburgh, that figure for the legal and accounting sector is closer to 10,000. The Law Society of Scotland has its headquarters in my constituency, and the Faculty of Advocates, of which I am non-practising member, has its headquarters in the neighbouring constituency of Edinburgh East. A lot of lawyers and other people who work in law firms live in my constituency and are worried about the impact of Brexit on legal services. There are many aspects of EU law that have particular relevance to the legal system and professions, including the directive on the mutual recognition of diplomas, the lawyers establishment directive and the lawyers cross-border provision of services directive.

[Sir William Cash]

Does the hon. and learned Lady recognise—I imagine she might—that there is a certain circularity in her argument? It is not surprising that the legal profession inside the European Union, which is concerned about European law, would want to protect that particular part of their activities. She could perhaps be a little more generous in understanding that those who want to leave might actually end up with laws that are made in this place.

[Joanna Cherry]

That is not what I am actually talking about. I am talking about the way in which European Union law has enabled Scots lawyers, English lawyers and lawyers across these islands to practise across Europe not for their benefit but for the benefit of their clients. That is the point. It is also to the benefit, as earlier speakers pointed out, of the financial services sector and to the British economy in general. This is not naked self-interest on the part of the lawyers. Lawyers depend on their clients to make a living. If lawyers are not able to practise across Europe easily, they will not be able to provide such a good service to their clients. That does not just apply in the financial sector. It covers all sorts of areas, including, very importantly, child and family law.

In Scotland, the Law Society of Scotland will be urging the UK Government and the Scottish Government to argue in negotiations that the current arrangements for lawyers to be able to practise in the European Union should be retained. It would be very disappointing if the only route for lawyers to be able to practise in Europe in future would be to requalify in other EU jurisdictions and go through the cumbersome processes that we have done away with as one of the many benefits of being in the EU.

Clearly, the best way to protect the legal and financial services in my constituency and in the city of Edinburgh is to remain part of the single market. That would be the easiest way to give comfort to those sectors. Of course, we are not able to give any comfort to those sectors, because the Government “do not want to give a running commentary”. However, it appears, as the result of a legal decision today, that the Government may in due course be forced to come to this democratically elected Chamber and tell us a little bit more about what their plans are. It is worthy of comment that that is not as a result of European judges sitting in Brussels, Luxembourg or Strasbourg. It is the result of English judges sitting in London. As a Scots lawyer, I wish to pay tribute to those English judges for the decision they have reached.

European Affairs

Debate between Joanna Cherry and William Cash

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.