The National:

THERE'S been much praise on social media for a contribution by SNP MP Joanna Cherry QC's to the Commons today – and rightly so.

Cherry delivered a stinging rebuke of a "toxic" Tory Government stirring up anti-immigrant feeling in working-class people through a lack of public investment.

The SNP's justice and home affairs spokeswoman, she said the Conservative administration had "created a great deal of poverty" through its policies.

Cherry explained: "I notice as I travel round provincial England that the infrastructure is not in such good condition as it is in Scotland.

"No social housing has been built here for years, in contrast we're building a lot of social housing in Scotland.

"I think many working-class people in England have been led to believe that the cause of their woes; the fact they can't get a house, the fact they can't get a well-paid job – OK they can get a job but not a properly paid job.

"They've been led to believe that's the fault of the immigrants. When it's the fault of this toxic Conservative Government."

And we can reveal that Cherry's speech was inspired by National columnist Lesley Riddoch's thoughts on the limits of devolution as revealed by Brexit.

READ MORE: Tory MSP left red-faced as Mike Russell quotes his Unionist blog

Cherry was speaking on the second day of the debate on Theresa May's Brexit deal, which is focused on security and immigration.

She criticised how the Withdrawal Agreement was put together, saying Scotland had been "cut out of the negotiations".

And she said First Minister Nicola Sturgeon's offer of a "differentiated deal" for the country, which would allow it to stay in the EU single market, had been "completely ignored".

Cherry added: "My point is that Scotland's marginalisation and its very weak bargaining position within the Union that is the United Kingdom has been very exposed by Brexit.

"The Brexit process has told Scottish voters a lot about the reality of devolution and that power devolved is indeed power retained and that the United Kingdom is not the union of equals we were told it was before 2014 but a unitary state were devolved power is retrieved to the centre when convenient", she said.

The SNP frontbencher wound up by saying the United Kingdom was "not a union which Scotland can continue to function properly in" as she advocated for another independence referendum.

Below is her speech in full – or you can click here to watch it on Parliament TV.


Joanna Cherry's speech in full (from Hansard)

It is a pleasure to follow the hon. Member for East Surrey (Sam Gyimah), and I applaud his courage in resigning as a result of his concerns about the deal.

There is much I could say about the detail of this agreement: red lines breached, for example, and the Court of Justice of the European Union articles 87, 89, 158 and 174 and article 14 of the protocol in relation to Northern Ireland make it very clear that the Prime Minister has had to make some pretty major concessions on her red line on the Court of Justice. We have heard in the Chamber—and have now seen it clearly in writing in the legal advice—that as a matter of law we could be trapped in the Northern Ireland backstop permanently and unable to get out of it, as I sought to clarify with the Attorney General earlier this week. The Northern Ireland backstop also means that the catch of fishing vessels registered in Northern Ireland will have preferential treatment through tariff-free access to the market in a way that fishing vessels registered elsewhere in the UK, including Scotland, will not have. I look forward—but do not hold my breath—to hearing the Scottish Conservatives making a fuss about that.

Today and the next few days should be about the bigger picture. I am looking forward to having an in-depth debate about immigration in due course, if we ever do see that much-promised White Paper, but I do want to make a few remarks about it now before moving on to the bigger picture. As I said earlier, it is a matter of record, because Scotland voted to remain, that the Scots did not hold the same concerns about sovereignty or immigration as held elsewhere in these islands, yet the political declaration confirms the UK Government’s intention to end freedom of movement. That will see people across these islands, but in particular the Scots who did not vote for it, lose the rights they have as EU citizens.

This is a deal that will see us made poorer not just economically, but also, equally importantly, socially. Even the Migration Advisory Committee has acknowledged that inward migration has made an overwhelmingly positive contribution to the economy of these islands, and particularly Scotland. The MAC, while failing to acknowledge the need for regional and national variations in immigration policy across the UK, did knock on the head many of the myths about immigration that drove the sort of xenophobia that led to the poster the Labour spokesperson, the right hon. Member for Hackney North and Stoke Newington (Ms Abbott), described earlier.

Scotland in particular has benefited from inward migration because at the start of this century we had a dwindling population and that EU migration has built our population and brought many young and economically active people into Scotland. Any Scottish MP who holds regular surgeries will confirm that that is a fact. There are two major universities in my constituency and all the academics tell me it is a fact that the process of Brexit and the rhetoric around immigration in this country is discouraging people from coming to live and work and study in Scotland. Scots did not vote for that, and that is one of the many reasons why we will not be supporting this deal.

Freedom of movement has been vital to fill gaps in the employment market in Scotland, and indeed across the UK. We have a big crisis across the UK in how we look after our ageing population. A lot of the people who look after our ageing population at present come from elsewhere in the EU and it will be a real shame if we discourage them from coming here in the future.

Mr Nigel Evans (Tory)

I agree with the hon. and learned Lady about students coming to the UK and that they should be able to work for a period as part of the payback; I think that is important. But does she accept that many people who voted for Brexit are not saying no to immigration? This is just about controlling immigration and that it should be this Parliament and the Government of this country that decide immigration levels.

Joanna Cherry

No one is saying we should not have an immigration policy; of course we must have an immigration policy. The point I am making is that the immigration policy should be evidence-based and take account of the needs of the economy and the different regions and nations of these islands, and this Government’s policy does not do that. If the Government have such a great idea about future immigration policy across the UK, why is it taking them so long to publish the White Paper? And if they are so keen to throw their arms open to people from all across the world and have everyone come here on an equal basis, why does the Prime Minister—the Prime Minister of those on the Conservative Benches—persist in her ridiculous net migration target? It is just nonsense that the Conservatives want to throw the doors open; for so long as the Prime Minister is in place and that ridiculous migration target is in place, that simply will not happen.

David Linden (SNP)

The Government will try to ramp up the rhetoric around EU migrants, but the reality is that in order to get some of their trade deals through, they will have to bend the visa rules for India and elsewhere, so what they take with one hand they will give with the other anyway.

Joanna Cherry

I entirely agree with my hon. Friend. It is crystal clear that if we ever get to the stage of being able to enter into third-party trade deals, which looks pretty unlikely at the moment, in return for access to the markets of countries outside the EU, those countries are going to want access to the UK for people who want to migrate from their country to here.

Wera Hobhouse (LibDem)

Does the hon. and learned Lady agree that it is the language around immigration that has been so toxic? I am a European migrant and I look around thinking, “Do they mean me?” That is exactly what other Europeans feel.

Joanna Cherry

I agree, and part of the reason why the language has been so toxic is because we have not been talking about the reality of the situation but about a perceived reality.

A Labour Member who is no longer in his place made a point earlier that I entirely agree with: the Conservatives have through their policies created a great deal of poverty across the UK. Wales and Scotland have to an extent been protected from that because we have had different devolved Governments, but I notice as I travel around provincial England that the infrastructure is not in as good condition as it is in Scotland. No social housing has been built here for years, too; in contrast we are building a lot of social housing in Scotland. Many working-class people in England have been led to believe that the cause of their woes, such as the fact that they cannot get a house or a well-paid job—they can get a job, but not a properly paid job—is the immigrants, when it is the fault of this toxic Conservative Government.

Under the withdrawal agreement, EU citizens who are already here will not continue to enjoy the same rights that they enjoy now; they will continue to enjoy some rights, but not the same rights. They will lose their lifelong right of return, they will not have the same family reunification rights, and they will get no protection from inadvertently becoming undocumented illegal citizens—and, my goodness, the Windrush scandal has taught us what happens to undocumented citizens who are lawful citizens in this country. God help EU citizens who find themselves undocumented illegal citizens. Do not take my word for it; take the word of the National Audit Office and reports of various Committees in this House. And in order to hang on to the rights they already have—not to get a passport, but to get the digital identity that means they can hang on to the rights they already have—fees will be imposed on EU citizens. In Scotland, the Scottish Government have said they will pay those fees for those working in the public sector, but now it appears that there might be a bit of a tax-catch in relation to that, and I am looking forward to the Conservative Government addressing that properly, and perhaps extending the same largesse that the Scottish Government have to people working in the public sector south of the border.

I am going to touch briefly on the security, justice and law enforcement issues. As other Members have said, it is simply impossible for us as a third country to have the same degree of security, justice and law co-operation that we previously had, and, in fairness, the Home Secretary recognised that. But one of the things that has concerned those of us who represent Scottish constituencies—or some of us, at least—and the Scottish Government and commentators in Scotland most about this process has been the abject failure of the British Government to recognise that Scotland has a separate civil and criminal justice system. This is not about devolution; this is about the Act of Union. Scotland has had a separate legal system forever, and it is protected by the Act of Union. Yet our separate criminal justice system, our separate civil law system, and our separate Law Officers have not been consulted properly on the impact of these matters on the Scottish legal system. As we know, there is no mention whatsoever of Scotland in the withdrawal agreement or the political declaration. A lot of other much smaller regions get a mention, but not Scotland. This is not fanciful; I know, because I used to work in the Crown Office and Procurator Fiscal Service, that co-operation across Europe has made a huge difference to law enforcement in Scotland, and if we lose that, we will be worse off as a result.

As I said earlier, today is a day for looking at the bigger picture. Speaking as someone who represents a Scottish constituency and as someone of Irish parentage, I see the bigger picture of the whole Brexit process as a tale of two Unions: the Union that is the United Kingdom and the Union that is the European Union. There are extremely stark differences between the ways in which the members of those Unions treat one another. So far as Ireland, north and south, is concerned, British politicians largely overlooked the threat that Brexit posed to the Good Friday agreement until after the referendum, and even then, many of them—particularly on the Conservative Benches—were and still are unable to accept the reality of the legal obligations that the United Kingdom undertook in that agreement. That old anti-Irish xenophobia that people like my mother remember so well has raised its head again, even to the extent of some on the Conservative Benches talking about the Irish tail wagging the British dog, and other such insulting metaphors. However, because the EU27 got behind the Irish Government’s legitimate concerns, they became central to the Brexit process. Conservative politicians—not all of them, but some—and indeed a few on the Benches behind me, waited in vain for the EU27 to crack and throw Ireland under the bus. That did not happen, and it is not going to happen.

I was at an event recently where the distinguished professor of modern history at University College Dublin, Mary Daly, remarked that the current situation in this House had uncanny echoes of what happened here 100 years ago when the electric politics of Ulster determined what happened at Westminster. It is quite ironic that that should be so, given that we are shortly to celebrate the 100th anniversary of the election of the first female MP to this Parliament. She was of course the distinguished Irish nationalist, the Countess Markievicz, who went on to be the first woman Cabinet Minister in western Europe. The truth is that the problems that arose as a result of partition have come back to haunt this House as a result of the Brexit process, but I believe that something that unites us all is that we want to see peace being kept in Northern Ireland.

Sammy Wilson (DUP)

Does the hon. and learned Lady accept that the Republic of Ireland actually has been thrown under the bus but does not realise that the wheels are running over it? If this agreement goes through, a border down the Irish sea will affect not only Northern Ireland but the Republic of Ireland, whose main market is GB and which takes its goods across GB, using it as a land bridge. It will find checks not just at Holyhead but at Dover.

Joanna Cherry

No, I do not accept that. I speak regularly with politicians from all parties in the Republic of Ireland and that is certainly not how they see matters. In fact, politicians, businesses and the wider community in the Republic are broadly very happy with the way in which the European Union has dealt with this. It is sometimes conveniently forgotten in this House that Northern Ireland voted to remain in the European Union. It is forgotten partly because Northern Ireland has not had the democratic voice of its Assembly during this time. It is only the voice of the right hon. Member for East Antrim (Sammy Wilson) that has been heard here in relation to Northern Ireland, but his party, the Democratic Unionist party, does not represent the majority of people in Northern Ireland, who voted to remain. The Prime Minister has refused to meet the Greens, the Social Democratic and Labour party, Sinn Féin or the Alliance, which is quite disgraceful.

Meanwhile, in Scotland, the people voted to remain in the EU by an even more substantial margin than that of Northern Ireland. It was 62%, and polls show that if a vote were held tomorrow, the figure would be nearer to 70%. Despite that, the Scottish Government have concerns. They are a democratically elected Government, although I know that those on the Conservative Benches like to call them the SNP Government and pretend that they have no legitimacy. They were elected democratically, and their legitimate concerns, which are often supported by other parties in the Scottish Parliament—as they will be today when the Liberal Democrats, the Greens and Labour will vote with the SNP to try to protect Scotland from the consequences of Brexit—have been wholly ignored. We can only look on with envy as the concerns of the Irish Government are placed centre stage in Brussels. Unlike Northern Ireland, Scotland has had a strong and functioning Government and Parliament during this process that have been well able to express their views, but that has not protected us. This Brexit process has highlighted the limits of devolved—as opposed to independent—government.

Patrick Grady (SNP)

My hon. and learned Friend is absolutely right. We fully expect the Scottish Parliament this evening to endorse a cross-party motion rejecting the withdrawal agreement, just as the Welsh Assembly did last night. The Scottish Conservatives are describing that debate as needless. They suggest that Scotland does not need to talk about Brexit, that the big Parliament in Westminster will make that decision for us and that we should know our place. That exemplifies just how they want to undermine devolution and use Brexit to do so.

Joanna Cherry

Of course, of the Scottish Conservatives do not represent the majority of Scottish opinion in relation to anything, let alone Brexit. It is often forgotten, after the hullabaloo when they won seats here last year, that they are still very much in the minority in Scottish politics and the Scottish Parliament.

Let us look at what has happened to Scotland in the past two years. The UK Government cut the Scottish Government out of the Brexit negotiations completely. The Scottish Government put forward the idea for a differentiated deal or a compromise for the whole of the United Kingdom at an early stage, but that was completely ignored. The Scottish Parliament voted—with the cross-party support of everyone apart from the Tories and one Lib Dem—to withhold consent to the European Union (Withdrawal) Bill, but that, too, was ignored. When the Scottish Parliament tried to pass its own legal continuity Bill, it was challenged by the British Government in the UK Supreme Court, and we are still waiting for that decision. When amendments to the withdrawal Bill came back from the House of Lords to the Floor of this House, Scottish MPs got 19 minutes to debate the implications of those amendments, with the rest of the time being taken up by the Government Minister. Scotland is not mentioned in the withdrawal agreement or the political declaration, while little Gibraltar—important though it is—was afforded advance sight of the agreement. The Scottish Government saw it only when the rest of us did.

My point is that Scotland’s marginalisation and its very weak bargaining position within the Union that is the United Kingdom have been very exposed by Brexit. After our failure in the independence referendum of 2014, 56 Scottish National party MPs were elected to this House, yet not one of our amendments to the Scotland Bill at that time got passed, despite the fact that we had 56 of the 59 seats in Scotland and 50% of the vote at that time. We were told that the wonderful Scotland Act was going to give us huge amounts of power and that we would have the most powerful devolved Parliament in the world. I would like to ask any fair-minded person in this Chamber, and anyone watching, whether they think the sequence of events I have just described really makes it sound as though we have the most powerful devolved Parliament in the world. Of course it does not, because devolution’s constitutional fragility has been revealed by Westminster’s assertion of control and attempts to repatriate powers here from Brussels, and by the disregard shown for Scotland’s preferences in the negotiations in Brussels.

The Brexit process has told Scottish voters a lot about the reality of devolution. It has told them that power devolved is indeed power retained, and that the United Kingdom is not the Union of equals that we were told it was before 2014 but a unitary state where devolved power is retrieved to the centre when convenient and where no one but the Conservative party, which represents only a minority of voters in Scotland, gets a say on major decisions over trade and foreign policy.

The experience of Ireland and Scotland during the Brexit process shows a significant contrast between the way in which nations that are member states of the European Union and nations that are members of this Union are treated. I heard the distinguished former Taoiseach of the Republic of Ireland, John Bruton, speak recently. When he was asked about this by a member of the audience, he said that Scotland’s marginalisation within the United Kingdom would not happen in the European Union, and that if the European Union were taking a decision as drastic as Brexit and it had only four nations in it, all four nations would need to agree. In the UK, however, it does not matter what Scotland and Northern Ireland say. They can always be overridden by the English vote. That is not an anti-English comment; it is a comment on the constitution of the United Kingdom. If Scotland were a member state of the EU, even though we are a country of only 5.5 million people, we would have the same veto as Ireland over such a major decision, in the same way that the big countries have.

There is still a little bit of hope for Scotland, and it comes from the cross-party working that we have seen there, both in the Scottish Parliament today and from the group of politicians, of which I am proud to have been a member, who took a case to the Court of Justice of the European Union. We found out yesterday that the advocate-general says that proceedings under article 50 can be unilaterally revoked. I was interested to hear the Prime Minister acknowledge earlier today, in response to a question of mine, that it is highly likely that the grand chamber of the Court will follow the advocate-general’s opinion. It seems that Scotland, Scottish politicians and the Scottish courts are throwing this Parliament a lifeline that would enable it to get out of the madness of Brexit.

Even if we do throw that lifeline, the United Kingdom Parliament takes it, there is a second referendum, and the whole UK is smart enough, having been put in possession of the full facts, to vote to remain part of the European Union, do not think that that will be the Scottish question closed, because the Brexit process has wholly revealed our inferior status within the Union, and people will not forget that. The last two years have shown us that across the United Kingdom, the leave vote was won on the back of promises that have proved undeliverable. Many people say that those promises were lies, but whether they were or not, they have proved undeliverable.

It is hard for me to be fair to the Prime Minister because of the scorn that she has shown for Scottish democracy, but I will try: I do not think that it is because the Prime Minister is a bad negotiator that the deal is bad. The truth is that there is no better deal than the one the United Kingdom currently enjoys from within the European Union.

The Prime Minister at least tried to negotiate a deal. Others who led the leave movement have totally and utterly abdicated their responsibility. I watched with interest yesterday while the right hon. Member for Uxbridge and South Ruislip (Boris Johnson) attempted and struggled to explain what he wants. I was none the wiser at the end of his speech. Let us not forget his partner in crime in the leave movement, who has now left the Treasury Bench: the Secretary of State for Environment, Food and Rural Affairs. Why did he not take the job of Brexit Secretary when it was offered to him a couple of weeks ago? If someone desires something so much, why not take responsibility for delivering it? I think we all know the answer to that question.

Then, of course, there is the right hon. Member for Haltemprice and Howden (Mr Davis). His insouciant appearances at the Exiting the European Union Committee were highly entertaining, but also deeply shocking. Now where is he? We have not seen him in the Chamber much in the last few days, but he is certainly not proposing any firm alternative to the deal.

The much maligned Court of Justice of the European Union, with the assistance of Scottish parliamentarians and the Scottish courts, has opened up new vistas of possibility for this Chamber. There is a chance of reversing the madness, but I accept that there will need to be a second vote. To achieve that, we will have to work cross-party in this Chamber. There is a lot of that going on already. May I respectfully suggest that parliamentarians in this Chamber look north to what is happening in Edinburgh this afternoon? They would see that it is possible for at least the Scottish National party, the Labour party, the Lib Dems and the Greens to work together. We know from this House that it is also possible for those parties to work with some Members on the Government Benches.

I want to make something crystal clear. Make no mistake about what would happen if there was a second vote across the UK, and England, in possession of the full facts on the reality of Brexit, again voted to leave—I am quite sure that Scotland would vote to remain. Scotland would not stand for that, and there would have to be a second independence referendum. This time, we know that we would have a far more sympathetic ear in Europe, even from the Spanish, supposedly Scotland’s great enemies. Their Foreign Minister said recently that if Scotland secedes from the UK constitutionally, he will not veto Scotland’s membership of the European Union.

As I said yesterday, I very much hope that when an independent Scotland tries to seek membership of the European Union, it will be remembered that it was Scottish parliamentarians and the Scottish courts who attempted to give the UK Parliament an escape route from Brexit. Even if the United Kingdom takes that escape route, the Brexit process has shown that the United Kingdom in its present form is not a Union in which Scotland can continue to function properly.

James Heappey (Tory)

Will the hon. and learned Lady give way?

Joanna Cherry

No, I am coming to the end of my speech.

We have seen writ large during this process the difference between what it means to be a member of the United Kingdom and a member of the European Union. In the European Union, even small countries such as Ireland are equal partners with big countries such as Germany and France. In the United Kingdom, a small country such as Scotland is not an equal partner with England. A power devolved is a power retained, and Scottish democracy is always at the whim of the majority in this House. That is not tolerable.

Regardless of what happens with Brexit, which I very much hope is reversed for the whole United Kingdom, I hope that the Scots will soon take the opportunity to say that Scotland’s position in the UK Union is not tolerable. We want to take our seat at the top table in the European Union, where I very much hope we will eventually be an equal partner with England, because I hope England stays, too.