Meeting date: Tuesday, September 24, 2019
Meeting of the Parliament 24 September 2019
Agenda: Time for Reflection, Business Motion, Topical Question Time, Supreme Court Judgment (Response), Common Frameworks, Decision Time, Idiopathic Pulmonary Fibrosis Week 2019
- Time for Reflection
- Business Motion
- Topical Question Time
- Supreme Court Judgment (Response)
- Common Frameworks
- Decision Time
- Idiopathic Pulmonary Fibrosis Week 2019
Supreme Court Judgment (Response)
The next item of business is a statement by the First Minister in response to the Supreme Court judgment on prorogation. The First Minister will take questions at the end of her statement, so there should be no interventions.14:26
We have witnessed some astonishing developments in the three years since the Brexit referendum in June 2016. The previous Prime Minister resigned after losing three House of Commons votes on her Brexit deal, one of which was lost by a record margin. The work of the Westminster Parliament has ground to a halt. It is important to note that that has had significant implications for this Parliament in areas—such as social security and no-deal preparations—in which we require co-operation to deliver our own commitments.
In recent weeks, the United Kingdom Government has also lost control of the House of Commons and now, even with the support of the Democratic Unionist Party, it has no workable majority. The Prime Minister has yet to win a single vote in the Commons since he took office.
All of that is extraordinary and unprecedented, but none of those extraordinary events compares with what has happened today. Today’s judgment of the Supreme Court may be about the prorogation of another Parliament, but the circumstances giving rise to it, and the implications of it, are of enormous significance to this Parliament and the people of Scotland. Indeed, that is why the Lord Advocate intervened in this case, on behalf of the Scottish Government.
Let me turn to the terms of the judgment. The UK Supreme Court has this morning upheld the judgment of the inner house of the Court of Session. It has ruled—and has done so unanimously—that the British Prime Minister acted unlawfully by suspending the UK Parliament. The president of the court, Lady Hale, said:
“the effect upon the fundamentals of our democracy was extreme”.
We should not allow the chaos and unprecedented events of the past three years to diminish or obscure the gravity of what the court has decided today. For the sake of democracy, we must not allow the abnormal and unacceptable to become normal and acceptable. It is truly historic and unprecedented in our modern democracy that a Prime Minister has been held to have broken the law in order to frustrate or prevent
“the ability of parliament to carry out its constitutional functions”.
It is hard to think of another democratic country in which there has been a more damning verdict on the behaviour of a Prime Minister. The judgment could not be starker. The Supreme Court said:
“It is impossible ... to conclude ... that there was any reason—let alone a good reason—to advise Her Majesty to prorogue Parliament for five weeks”.
This is not a technical or narrow defeat for the UK Government. It is not just about, for example, the detail of an act of Parliament. It is a defeat on justiciability, on lawfulness and on remedy, and it is in terms that call into question the UK Government’s commitment to basic democratic values and the rule of law.
Let us be clear: a Prime Minister with no electoral mandate and no parliamentary majority tried to shut down Parliament. He tried to prevent the UK Parliament from holding the UK Government to account, from exercising its democratic functions, from challenging the Government, from scrutinising its actions, from holding committee meetings, and from questioning him and other ministers. In other words, he sought to prevent Parliament doing all the things that give meaning and life to the term “parliamentary democracy”.
The Supreme Court mentioned the vital role that such scrutiny has in our system of government. The judgment even noted that, in the advice that was sent to the Prime Minister, the importance of
“consultation with the Scottish Parliament and the Welsh Assembly”
was not mentioned anywhere.
The statutory instruments that are required to prepare the statute book for European Union exit, which this Parliament has to consent to under a protocol that is otherwise honoured by the UK Government, were made instead under an emergency procedure, without the consent of the Scottish ministers or the scrutiny of this Parliament.
“This was not a normal prorogation”,
the Supreme Court ruled.
“It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day.”
That is scrutiny that cannot be got back.
The Supreme Court observed that
in the evidence
“is there a hint that the Prime Minister, in giving advice to Her Majesty, is more than simply the leader of the Government seeking to promote its own policies.”
Nowhere is there a hint that he has “a constitutional responsibility”.
That behaviour on the part of a Prime Minister shames his office, shames the UK Government, shames the Conservative Party and demonstrates beyond doubt that Westminster politics is badly broken.
We should pay tribute to the campaigners in England and in Scotland—led, of course, by Joanna Cherry MP—who brought the court actions. Let me do so now on behalf of the Scottish Government. Indeed, it speaks volumes that, in his initial reaction to the ruling, the Prime Minister accused those who brought the actions to have the prorogation declared unlawful of trying to “frustrate” Brexit. Not only is that argument wrong, it is also a remarkable argument from a Prime Minister who also claims that the prorogation had nothing whatsoever to do with Brexit.
Now, of course, we must look forward. In my view, four things should happen. First, there must be a clear recognition that the person who is responsible for this fiasco is the Prime Minister. It was Boris Johnson who took the decision to prorogue Parliament; it was Boris Johnson who acted unlawfully; and—I do not say this lightly—it is Boris Johnson who must now resign. It is, of course, possible for a Prime Minister to continue in office if they are unpopular. It is even possible for a Prime Minister to survive in office if they are not competent. However, no Prime Minister should believe that they can act with impunity and remain in office when they have acted unlawfully in the manner and the circumstances that were set out so clearly by the Supreme Court today.
Before he became Prime Minister, many of us said that Boris Johnson was not fit to hold office. Many argued that his past comments should have ruled him out of running even to be leader of the Conservative Party. Those are—of course—political views, and they will be contested. However, the view that he should resign today is not just about politics; it should be the conclusion of anyone who believes that parliamentary democracy, accountability and the rule of law matter.
Secondly, the court has ruled today that the UK Parliament is not legally prorogued. It must, therefore, return to business as soon as possible. To that end, I welcome the statement from the Speaker of the House of Commons a short while ago that it will do so tomorrow. Never in recent times has it been more important for all of us that the UK Government is held to account, and it is right that that work will restart immediately.
Thirdly, the UK Government must make it absolutely clear that it will respect and adhere to the Benn act—the European Union (Withdrawal) (No 2) Act 2019—which is designed to prevent a disastrous no-deal crash out of the European Union. There have been alarming whispers that the Tories are looking for technical loopholes or are prepared simply to ignore the law and press ahead with their no-deal plans.
After today, we need a clear and unambiguous statement that the law will be respected, and that the UK Government will ask for an extension to prevent a catastrophic no-deal Brexit on 31 October. Ultimately, this is—of course—about the fundamentals of our democratic system. However, it is also—never let us forget—about people’s jobs and living standards, the health and wellbeing of our communities and our place in the world. It is about maintaining the hard-won and precious peace in Northern Ireland, and it is about respecting the wishes of the people of Scotland and the views of this Parliament. It is also about avoiding the disruption that we know will take place, and that the UK Government knows will take place, in both the short and long term, if any Brexit—but especially a no-deal Brexit—is allowed to happen.
Fourthly, in my view, this UK Government should be removed from office as soon as possible. There is, in truth, no functioning UK Government right now, and, as of today, we know beyond doubt that, to the extent that it is functioning at all, it is a Government that is prepared to ride roughshod over democracy and the law. It is impossible to have confidence in this Prime Minister or the Government that he leads. Therefore, as soon as the risk of it being used to force through a no-deal Brexit on 31 October has been removed, there must be a general election.
This is an important time to take action but also to reflect. Our Scottish Parliament has been reconvened for 20 years. Its reconvening was a vital step in restoring Scotland’s political voice. Today in this chamber, we need to make it clear that all of us, regardless of party, stand up for democratic values, that we condemn a Prime Minister who was prepared to act unlawfully to shut down Parliament and that we will continue to do everything that we can, as a Parliament, to make Scotland’s voice heard and to protect our citizens from the damage of Brexit.
We should also resolve not to allow our Parliament or the people of Scotland to remain at the whim of an extreme, out-of-touch, law-breaking UK Government. We should instead resolve that the better—the best—foundation on which to build the future of our country is as an independent member of the European family of nations.
The First Minister will now take questions.
Today’s judgment by the Supreme Court is as profound as any made by any court in my political lifetime. I start by saying that the rule of law is the foundation of our system of government. The judgment of the courts must be respected by Government, all the more so when it may not like the result. The judgment clearly upholds the principle that Government is subject to the will of Parliament and that Parliament is therefore not subject to the will of Government. That is an important consideration for each of us in every Parliament.
The Prime Minister has stated that the House of Commons and the House of Lords will now return, as confirmed by the Speakers of the House of Commons and the House of Lords, and that, in consequence, Westminster will now have further opportunities to continue the debate on Brexit and other business. In a parliamentary democracy—and, not least, in light of the court’s judgment—it is right that our Westminster Parliament will now determine what comes next. That overall priority is unchanged: the possibility of a deal to leave the EU on 31 October in an orderly way is still there. Members of Parliament must redouble their efforts to find that resolution and support a fresh arrangement if that is achieved with our European partners.
In the first instance, I ask the First Minister whether, if a deal with our European partners emerges, Scottish National Party MPs will vote for it. If that cannot happen, does the First Minister not agree that it is clear that a House of Commons that is unable to determine progress in any way must make way for a new Parliament that can, and that there must be, as the Prime Minister sought to achieve, a general election?
I welcome Jackson Carlaw’s comments about the rule of law and the foundations of our democracy. Such comments are and should be uncontroversial in any Parliament and in any democracy. The fact that they are being discussed in the way that they are in the United Kingdom today speaks volumes about the turn that the UK Government has taken and the direction that it has taken the country in.
On the issue of a deal, I have made my position abundantly clear—indeed, crystal clear—since the day of and the day after the Brexit referendum in 2016. Scotland did not vote for Brexit. My principal responsibility as First Minister is to seek to ensure that Scotland’s democratic wishes are respected, and that is what I will continue to do.
That said, I made valiant efforts to strike compromise with Boris Johnson’s predecessor. This Government published a paper as far back as December 2016, in which it put forward the proposal that a single market, customs union future would be a decent compromise. That was not my first or preferred option, but it was a decent compromise that was put forward in an attempt to bring together divided opinion. That attempt at compromise was completely and utterly ignored.
To respond to Jackson Carlaw’s question, there is no deal before us to scrutinise. The European Union has made it clear in recent days that the UK Government is yet to put credible proposals for a deal on the table. Of course we will scrutinise anything that comes forward, but I make it absolutely crystal clear that neither I nor the SNP will vote for something that takes our country out of the EU—out of the single market and the customs union—against our will, with all the damage that that would do. I would be abdicating my responsibility as First Minister if I were to agree with that way forward for Scotland.
Lastly, I believe, as I said in my statement, that it is time for a general election. However, as the SNP has also said and worked with other parties to secure—this must continue to be the priority as the UK Parliament returns tomorrow—we must make sure that that general election cannot be used by the Prime Minister as a device to force through a no-deal Brexit on 31 October.
The means of avoiding a no-deal Brexit is now on the statute book in the form of the Benn act, so the first priority for MPs should be to ensure that that act is complied with and honoured and that we avert the risk of a no-deal Brexit. I believe that the UK Government should then be turfed out of office and that there should be a UK general election as soon as is practically possible.
The Supreme Court position shows that the Prime Minister has acted wrongly, in contempt of democracy, and that that is an abuse of power by the Prime Minister. Does the First Minister agree that, regardless of our political colours, we need to unite in this Parliament to send a clear message that the current Tory Government at Westminster must obey the law and take no deal off the table? Does she agree that we should then have an election to elect a Government that respects democracy and the rule of law and brings power back to the people? Given the decision today, does the First Minister also agree that this Parliament should unite to call for the resignation of the current Prime Minister, who is in breach of the law?
Yes, I agree with all of that. I think that I set out all those views in the statement that I made a few moments ago. First, we should not allow the extraordinary nature and the significance of what the Supreme Court has said today to somehow be normalised in the midst of the chaos that the UK and UK politics have descended into. This is an unprecedented judgment; it is truly historic. All of us, as politicians, often tend towards hyperbole but it is not an exaggeration to say that this is truly unprecedented. The Prime Minister has been found to have acted unlawfully, in a manner and in circumstances set out by the Supreme Court that make his continued tenure as Prime Minister unthinkable. If he has any honour, he will tender his resignation in light of the judgment.
Secondly, I believe that MPs should continue to work together, as they were doing before the attempted prorogation, to take the threat of no deal off the table. The Benn act is now on the statute book; the job now is to make sure that the Government cannot circumvent it or break it in any way.
Thirdly, when that has been done, if the Prime Minister will not do the decent thing and resign, the Opposition parties should come together to hold a vote of no confidence to remove the UK Government from office and to ensure that there is a general election.
I know that discussions involving my party and other parties are under way this afternoon at Westminster, and the SNP, as we have done all along, will seek to play a constructive role in those discussions.
The First Minister is quite right to say that Boris Johnson must be held personally responsible for this action. Boris Johnson is someone who, throughout his career, has shown contempt for the truth, contempt for Parliament, contempt for devolution and—although it is out of character for me to stand up for the Queen—contempt for a monarchy that he professes to believe in.
However, is it not the case that the whole UK Government must be held responsible as well? Those people chose to serve under him; his Cabinet and his adviser team include people who were deeply complicit when the leave campaign broke the law in order to secure the referendum result. Why should we expect any better of them now that they are in government? Is it not clear that the UK now has a rogue Government that cannot, in any way, be expected to respect democracy or the rule of law?
I absolutely agree that today, when it comes to the Westminster Government, it is not so much a matter of prorogue as just plain rogue.
Seriously—because this is a serious matter—I agree with Patrick Harvie, although we should not lose sight of the personal responsibility that the Prime Minister should bear for this decision. The decision to put advice on prorogation to Her Majesty the Queen, to seek that agreement and to do what flowed from that was the Prime Minister’s decision and he should bear responsibility for the fact that that decision has been found to be unlawful by the Supreme Court today.
However—yes—I think that the entire UK Government should be out of office. I do not expect better of the likes of Jacob Rees-Mogg or Michael Gove, who misled the country in the arguments that they put forward to try to secure the Brexit vote. However, people have a right to expect more of some members of the Government; it is a bit invidious to name names, but it is time to be blunt—people like Nicky Morgan, who argued for remain and who has said previously that the kind of actions that Boris Johnson has engaged in, which have now been found to be unlawful, would have been unacceptable, now seem happy to sit in a Cabinet around the table with this Prime Minister. The sooner that we get that Government out of office and have a general election, the better.
My final point—I know that Patrick Harvie will agree with it, and others in the chamber will not—is that, as long as Scotland is in the constitutional position that we are in right now, we will always be at the mercy of Westminster Governments that we do not vote for taking our country down a path that we do not want to go down. Ultimately, the solution to that is for us to become a normal independent nation, taking our place with the other independent nations of the European Union and the rest of the world.
I think that the First Minister knows that we do not need more chaos. We need less of it—so no independence.
Thanks to the UK Supreme Court, parliamentary democracy has prevailed today. When the Prime Minister speaks at the United Nations this evening, he will not be speaking for our country. His unlawful actions have diminished him—if that was at all possible—and humiliated our country once again. The Prime Minister should resign; he is not a fit and proper person, and no person in this chamber, including the Conservatives, should support him.
I agree with the First Minister that we need to bring this chaos to an end. The Prime Minister must resign, we need to stop no deal, we need to have a general election and, most of all, we need to stop Brexit.
I agree with all of that, perhaps with the exception of Willie Rennie’s first sentence. I obviously do not want chaos, but I want Scotland to be a normal independent country so that we can avoid the chaos that has been imposed upon us right now.
On the more substantive point that Willie Rennie made, I agree that it is time—this situation cannot continue. There is a Government—if we can still call it that—at Westminster that has no majority; a Government that has been found to have acted unlawfully; a Government that is doing nothing, even on Brexit, and certainly nothing apart from Brexit. The governance of the UK as far as Westminster is concerned has ground to a halt. I certainly am of the view that, as soon as the risk of a no-deal Brexit at the end of October can be averted, we must have a general election. If what Willie Rennie said was an indication that the Liberal Democrats will support that, I warmly welcome it.
I will support anything that puts an end to Brexit. I will support revocation of article 50, a people’s vote or anything that allows Brexit to be stopped and the democratic wishes of the people of Scotland to be honoured. Ultimately, however—and this is the point on which Willie Rennie and I do not yet agree, although I live in hope—the only way to make sure that our democratic wishes in this Parliament and in this country are always respected is to make sure that we are independent and in charge of our own future.
The Prime Minister has been found by the Supreme Court to have acted unlawfully in the advice that he gave to the Queen. Let us just think about that for a moment. Does the First Minister agree that Johnson has been stripped clean of credibility and, if he had a shred of dignity, he would have resigned already? It appears that Boris Johnson is not considering resigning or even apologising, despite that monumental and historic decision. If that is the case, does the First Minister agree that Opposition parties should now move for a vote of no confidence in this law-breaking Prime Minister as soon as a no-deal Brexit has been prevented? No one can trust a word that the Prime Minister utters ever again.
I hope that all members of this Parliament would agree with that. I know that it is the stuff of politics that resignations are called for regularly and for political reasons—that is part and parcel of the political process. However, this issue today goes beyond that. This is not just about politics; it is about respect for the rules of democracy and for the rule of law. Bruce Crawford is right that, if the current Prime Minister had any honour and dignity, he would have tendered his resignation already today.
However, instead of doing that, we have heard clear evidence from him that—even now—he has not begun to learn the lessons. His Government argued before the Supreme Court that the prorogation of Parliament had nothing to do with Brexit and was all to do with preparing for a Queen’s speech, yet, in his first comment after the ruling, he accused those who brought the cases of trying to frustrate Brexit. It can be one thing or the other, but it cannot be both. In today’s statement, Boris Johnson compounds the arrogance that he showed in giving unlawful advice to the Queen on prorogation.
I believe that it is time to get the UK Government out of office. That will mean the Opposition coming together behind a vote of confidence. It is important that we continue to take all necessary action to ensure that an election cannot be used to push us off the no-deal cliff edge at the end of October. However, as soon as that is done, it is time to have an election and get the Government out.
Does the First Minister agree that the core principle on which today’s Supreme Court judgment is based is that Governments are accountable to Parliaments and not the other way around? Does she agree that that principle applies to all Governments and all Parliaments in the United Kingdom?
Yes, I do.
The Tory Government has been found by the highest court in the land to have acted unlawfully in shutting down Parliament at a time of national crisis in an attempt to prevent Parliament holding Government to account. Does the First Minister agree that the members of Parliament who supported such action, including the 12 Tory MPs in Scotland, put their careers before their constituents and should face the judgment of voters at the ballot box sooner rather than later?
It should not be lost here that all the Scottish Conservative MPs, who were elected from constituencies that rejected Brexit in the referendum and do not want Brexit now—they certainly do not want a no-deal Brexit—have gone along with the tactics and strategy of the Prime Minister from the moment that he was elected. I think that that reflects extremely badly on them, but it is not my judgment of them that will count; rather, it will be the judgment of the electorate that counts. When the time comes—I hope that it will be sooner rather than later—I think that those Tory MPs will face a pretty severe judgment.
In interviews today, Boris Johnson has shown that he is prepared to act unlawfully not only once but twice, because he plans to ignore the Hilary Benn act. That is expected to lead to parts of Government and the civil service going on strike, in effect, which would be astonishing. What advice has the First Minister received on the role of Scottish civil servants and the impact on intergovernmental business if those circumstances come to pass?
The conduct of the UK Government in its attempts to prorogue Parliament has an impact on the operation of the Scottish civil service and the Scottish Government. It impacts on our ability to get co-operation on the normal business of government and to plan effectively for a no-deal Brexit.
Any further attempts to circumvent or break the law will continue to have such an impact, which is severe in terms of the practical workings of government and even more severe in terms of the fundamental values, principles and rules of our democracy. It cannot be allowed to be the case that the Benn act is not honoured and adhered to, and whatever MPs have to do to ensure that it is adhered to should be their priority when they gather again in the House of Commons tomorrow.
We hear reports that Downing Street is “processing the verdict”. Will the First Minister—Scotland’s First Minister—call on Downing Street and the UK Government to accept the judgment in full and not impugn the independence of the judiciary, as they did following the 11 September ruling of the inner house of the Court of Session?
The comments that were attributed to Downing Street sources after the inner house of the Court of Session issued its judgment a couple of weeks ago were disgraceful. I hope that we do not hear anything of that nature again from any party or Parliament in the UK, and certainly not from the UK Government. I have heard comments today from the Prime Minister and others that they respect the independence of the judiciary, but it is important that they do not simply pay lip service to that and that their actions demonstrate it. We can all scrutinise that in the days that follow.
I know more than many, if not more than most, in the Parliament about the accountability of Government to Parliament—Adam Tomkins made a point about that—and the accountability of Government to the courts. That is often uncomfortable territory for Governments, but if we compromise on that ground, our very democracy is at stake. It is vital that all of us are prepared to adhere in substance, not just through lip service, to those fundamental underpinning values of the democracy that we all cherish so highly, no matter how difficult that might be for us on particular issues from time to time.
On a similar point, in the wake of the judgment, various commentators and others have, regrettably, already begun promoting the idea of the politicisation of the judiciary in terms of judicial appointments. Will the First Minister reaffirm the independence and impartiality of the judiciary in Scotland in relation to their appointments as a fundamental principle of our constitution?
Yes, I will—unequivocally and unreservedly. I appreciate the question that has been asked and the spirit—I hope—in which it has been asked. If there is anything broken about the UK’s unwritten constitution right now—my view is that there is lots broken about it—it is not the independence of the judiciary, the way in which our judges are appointed, or the way in which our judges go about their business. I would argue that that is one of the aspects of the constitution that have worked effectively over recent weeks and months.
It is important for all of us to respect the judiciary, and that means not calling judges out as enemies of the people when they make judgments that we do not agree with, as some newspapers have done. It also involves not lauding them as heroes when they make judgments that we agree with. Judges are there to do a job independently and to apply the law without fear or favour. Politicians will agree with some judgments and disagree with others, but it is important that we respect the principle of independence. That is fundamental to our democracy and its operation, and any of us would depart from that at our peril.
Earlier, Jackson Carlaw said that our Westminster Parliament will determine what comes next. Is that correct, in light of paragraph 60 of the judgment, which refers to the need to consult the Scottish Parliament and the Welsh Assembly? Would any decisions that have been made without the agreement of all the jurisdictions in these islands be invalid, as the judgment has shown previous judgments to be invalid?
Stewart Stevenson raises a valid and very important point. Obviously, in strict terms, what came next was not simply a matter for the Westminster Government; actually, it was for the Speaker of the House of Commons to decide that Parliament should gather again tomorrow, and I am pleased that he has done so.
I recommend to all members that they read paragraph 60 of the judgment, which talks about the consultations that are required with the Scottish Parliament and the Welsh Assembly. I hope that, in any steps that the Westminster Government now takes, the principle of consulting the Scottish Parliament and the Welsh Assembly is respected in a way that it has not always been previously. Given the terms and strength of the judgment today, I very much hope that the UK Government will take more care over how it arrives at such decisions in the future than it has done in the past.
Boris Johnson should resign as Prime Minister. His position is untenable, and he has treated the public, the courts and Parliament with utter contempt. Does the First Minister agree that we should send out a search party for the Secretary of State for Scotland, Alister Jack, who has been posted missing since he took office and is nothing more than a puppet for the lawless activities of the Johnson Administration?
That is a very fair point, which is evidenced by the fact that I had almost forgotten about him. I thank James Kelly for reminding me about the Secretary of State for Scotland.
In all seriousness, the question goes back to the point that Patrick Harvie made. This is the Prime Minister’s responsibility, but all ministers who sit around the Cabinet table are, of course, part of the Government and part of the decision-making process. That is what Opposition members would say about Scottish Government decisions—and rightly so. It is important that ministers are held to account and that they are not allowed to simply disappear. I am sure that we will hear at length from the Secretary of State for Scotland before the end of today and that we will all benefit greatly from that.
Delivering the Supreme Court’s conclusion on prorogation this morning, its President, Lady Hale, said:
“The effect on the fundamentals of our democracy was extreme.”
Is that view shared by the First Minister?
Yes. The effect of the decision that the Prime Minister took was to end all parliamentary scrutiny. One of the most powerful parts of a very powerful judgment was the explanation of the differences between proroguing Parliament and Parliament going into recess. Prorogation effectively ends all the work of Parliament. That was the context in which the word “extreme” was used.
The judgment is set out very bluntly, not politically but in terms of the law, how it is applied and the effects and implications of the judgment. It is the nature of the circumstances in which the Prime Minister has been found to have acted unlawfully, including the extreme implications of what he did, that makes his position so untenable now.
That concludes our statement on responding to the Supreme Court’s judgment on prorogation.