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.