Oral Answers to Questions

Debate between Keir Starmer and David Davis

Thursday 27th April 2017 Commons Chamber

[Mr Davis]

My hon. Friend is right. One thing that I think people have missed and he has picked up on is that any change in those rights would require primary legislation in this House. In addition, our plan is to put through the great repeal Bill and have subsequent consequential primary legislation that will underpin those rights. I have made those points to many of my opposite numbers, the interlocutors for other member states, and said that this will be taken at the same time as protection of British rights abroad. They have all understood and welcomed that. I am very confident that we can get a deal that will protect all of the, I think, 4 million in very short order.

[Keir Starmer (Holborn and St Pancras) (Lab)]

Let me pick up on that theme. As the Secretary of State knows, about 3 million EU nationals are very anxious about their status when we leave the EU. Labour would unilaterally guarantee their status from day one. Under this Government, all they can do is apply for consideration for permanent residency, but as the Brexit Select Committee warned in March:

“The current process for consideration of permanent residency applications is not fit for purpose”.

The Secretary of State knows how important this is. Have things improved?

[Mr Davis]

I respect the hon. and learned Gentleman’s concern in this area. Let me be clear about that. However, I would say to him that the system there now is not designed to deal with 3 million. That has been made plain. In fact, if he goes on the Home Office website, he will see that it says not to make an application now—there is no need to. When we move the primary legislation it will be a matter for the Home Office, but I believe it will be very simple when it comes to that point.

[Keir Starmer]

As the Financial Times reported yesterday, the Home Office is now saying, “Don’t apply”. Is that the Government’s official position for EU nationals—“Don’t apply for permanent residency”? Is that how they will deal with that anxiety?

[Mr Davis]

What that is about is a reflection of what is on the Home Office website, which essentially points out that EU citizens do not need to apply for their rights to be underpinned. That is the approach we are taking. The hon. and learned Gentleman should bear in mind that for the next two years, irrespective of anything that the Government do, all the existing rights and privileges continue to apply. There will be no change in that respect. Before we come to the point of exit from the European Union, we will have made that very clear in primary legislation.

Legislating for UK Withdrawal from the EU

Debate between Keir Starmer and David Davis

Thursday 30th March 2017 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I thank the Secretary of State for early sight of his statement and the White Paper.

Nobody underestimates the task of converting EU law into domestic law. The question is: how is it done and what is to be done? On the question of how, the White Paper gives sweeping powers to the Executive. They are sweeping because it proposes a power to use delegated legislation to “correct”, and thus change, primary legislation and devolved legislation, and because of the sheer scale of the exercise.

In those circumstances, one might expect some pretty rigorous safeguards for the use of those sweeping powers, but there are none to be found in the White Paper. On the contrary, paragraph 3.20 states:

“Given the scale of the changes that will be necessary and the finite amount of time available to make them, there is a balance that will have to be struck between the importance of scrutiny and the speed of this process.”

The White Paper goes on to say:

“The Government proposes using existing types of statutory instrument procedure.”

There are no enhanced safeguards for that sweeping use of powers.

In those circumstances, we have to go back to first principles. There should be no change to rights and protections without primary legislation—that is a starting and basic principle—and the same goes for policy. I add this: when we see the Bill, it must give no power to change rights, obligations and protections by delegated legislation. Will the Secretary of State provide assurances on those basic principles and look again at safeguards for the proposed delegated legislation procedures?

Again, there have to be clear principles for converting EU law into domestic law. All rights and protections derived from EU law must be converted into domestic law, with no limitations, no qualifications and no sunset clauses. This morning we need an assurance from the Secretary of State that he will face down those on his own side who will not be able to resist the temptation to water down those rights and protections before they are even put into the Bill. I remind him that the International Development Secretary said during the referendum campaign that we should

“halve the burdens of the EU social and employment legislation”.

The International Trade Secretary has said:

“we must begin by deregulating the labour market.”

We need an assurance that those temptations will be faced down before the Bill is put before the House.

I turn to the charter of fundamental rights which, it is proposed, will be left out altogether. The charter codifies in modern form all EU rights. It is not directly enforceable —it is a codification—but it is none the less influential, and it is wrong simply to leave it out. I note what is said at paragraph 1.12 of the White Paper, but I seek an assurance from the Secretary of State that all relevant rights—I accept that some are not relevant, such as the right to vote in the European Parliament—and all substantial rights in the charter will be converted into domestic law through the Bill.

Finally, on devolved bodies, Brexit should not be an excuse to hoard powers in Whitehall. There has to be a heavy presumption that devolved matters will remain devolved as powers and responsibilities transfer from the EU to the UK, so I ask the Secretary of State to give us an assurance about that.

[Mr Davis]

At the end of my statement, I said that I hoped the House would come together in making this task happen. I reiterate that point to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), my opposite number. He says that no change should be made to rights through delegated legislation, but I would have thought that that almost goes without saying. [Hon. Members: “Then say it!”] While I say that it almost goes without saying, I actually said that in my statement, if hon. Members read it.

Let me reiterate that the use of delegated legislation will be for technical changes—the sort of alteration whereby, for example, a reference to a regulatory body in the European Union clearly has to be replaced with a reference to a body in the UK. Frankly, I think that that is as plain as a pikestaff. The hon. and learned Gentleman changed his wording slightly by talking about “all relevant rights”, and he is quite right to do so, because things such as the right to stand as an MEP, the right to elect an MEP and, indeed, the right to make a direct application to the European Court will go automatically. He is a reasonable man, so I take it that he accepts that.

On charter rights, let me remind the hon. and learned Gentleman of what happened with the Lisbon treaty in 2007. The Labour Government of the day negotiated that treaty and a protocol to it, about which the Prime Minister of the day said:

“It is absolutely clear that we have an opt-out from both the charter and judicial and home affairs.”—[Official Report, 25 June 2007; Vol. 462, c. 37.]

Actually, Mr Tony Blair was wrong to say that; he had misunderstood the Labour Government’s own protocol, which guaranteed that no new rights arose as a result of the charter of fundamental rights. That was reiterated later by the then Government in court and by their then Europe Minister, who said:

“The Protocol confirms that since the Charter creates no rights, or circumstances in which those rights can be relied on before the courts, it does not change the status quo.”

The 2007 White Paper said the same thing, and only last year—I think in December—the Joint Committee on Human Rights reiterated that understanding.

We looked at that matter very carefully because, as the hon. and learned Gentleman might appreciate, it is an area that I take very seriously indeed. Aside from the undertakings that he has asked for, I make this offer to him: if, in the next two years, we find something that we have missed, we will put it right. On that basis, I do not think that we have an argument. I do not think that that will happen either, because a clause-by-clause search through the whole charter did not throw up any significant issues, other than things such as the MEP matter.

On the treatment of the devolved Administrations, the first thing to say is that no powers currently exercised by them will be taken away. We have said that time and again. We also expect that there will be a significant increase in the powers exercised by the devolved Administrations. However, I say this to the hon. and learned Gentleman: we have to maintain the United Kingdom internal market, too. That market is four times as important to Scottish businesses, for example, as the European market, and it is incredibly important to Northern Irish and Welsh businesses as well. The Administrations understand that. We will be holding discussions with them at length—we have already started those discussions—about how we execute this. I will be happy to talk to the hon. and learned Gentleman about the matter as well, if that would be useful to him. I reiterate that this is a difficult task, but it is by no means beyond the ability of the House to achieve this properly, respecting our democracy and delivering for the British people.

European Union (Notification of Withdrawal) Bill

Debate between Keir Starmer and David Davis

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Mr Davis]

Will hon. Members forgive me if I do not give way, because I am coming to the end of my comments?

Any prospect that we might actually decide to remain in the European Union would only serve to encourage those on the other side to give us the worst possible deal in the hope that we will do exactly that. This amendment would not only restrain the negotiating power of the Government but would create uncertainty and complications throughout the negotiating process while lessening the chances of the mutually beneficial deal we are seeking.

I reiterate the three key points. First, the Bill was brought forward to implement the referendum result, respect the Supreme Court judgment, and nothing else. Secondly, these amendments are unnecessary as the Government have already made firm commitments with regard to both of the two issues, and we will deliver on those commitments. Thirdly, these amendments would undermine the Government’s position in negotiations to get the best deal for Britain, and that cannot be in the national interest. Therefore, it is clear to the Government that we should send back to the House of Lords a clean Bill. This House has already expressed its support of this view in Committee, and I ask us all to repeat that support once more.

[Keir Starmer (Holborn and St Pancras) (Lab)]

I rise to support both of the amendments that have been passed in the other place. They started life as Labour amendments at the Committee stage in this House, Labour peers led on them and voted for them in the other place, and they will be supported by Labour MPs here today.

The question is this: are Conservative Members willing to listen to the arguments in favour of the amendments, to which I know many are sympathetic and have concerns about, or will they go along with the Prime Minister’s increasing obsession to pass a clean Bill, unamended, even if that means ignoring amendments that would improve the Bill and provide much better protection?

Oral Answers to Questions

Debate between Keir Starmer and David Davis

Thursday 9th March 2017 Commons Chamber

[Mr Davis]

Yes, I can. I went to—I think—nine of our fellow member states in three weeks, and others have come to see me. The overarching response has been a positive one; it has been one of support for the general approach, and it has been one that seeks a constructive outcome, not the penalty outcome that was talked about by some earlier. It is certainly true that they also think of our approach as very logical, so I think that gives us great cause for optimism in the negotiations.

[Keir Starmer (Holborn and St Pancras) (Lab)]

Clearly, the Government want to trigger article 50 next Wednesday or next Thursday. They will then have to set out their proposals in detail so that the EU can respond. For months, they have hidden behind the bland phrases “frictionless borders” and “frictionless trade”. This is the last opportunity before triggering for the Secretary of State to spell out what those phrases actually mean.

[Mr Davis]

The hon. and learned Gentleman is a very erudite chap and I would have thought that he would know what “frictionless” meant. It means trade with the minimum possible barriers and the minimum possible impediment, and that is what we will seek to achieve.

[Keir Starmer]

The Prime Minister has said that the approval of Parliament will be required for the final terms of our withdrawal agreement with the EU. She has also promised that that will occur before the withdrawal agreement is sent to the European Parliament for its consent. The House of Lords has now voted by a large majority to amend the article 50 Bill to reflect those commitments. All very straightforward. If the Prime Minister intends to keep to her commitments, why would the Government not support that amendment when it returns to this House on Monday?

[Mr Davis]

Because it is unnecessary.

Exiting the EU: New Partnership

Debate between Keir Starmer and David Davis

Thursday 2nd February 2017 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

Normally I would thank the Secretary of State for early sight of his statement, but this statement says nothing. A week ago at Prime Minister’s questions, the Prime Minister said that there would be a White Paper. Yesterday she said that there would be a White Paper tomorrow, and the Secretary of State now makes a statement saying that there is a White Paper, but as the White Paper was not delivered until a few minutes ago, how can meaningful questions be asked about it?

For months we have been calling for a plan; that was refused on the basis that there would not be a running commentary. Then the Government agreed to a plan but delivered a speech. They were forced to concede under pressure that there would be a White Paper, but now a White Paper has been produced too late in the day for us to ask meaningful questions of the Secretary of State in this session. That is completely unacceptable.

The first fight on Brexit is very clear: it is a fight about giving this House a meaningful role in holding the Government to account. The Government had to be forced by the Supreme Court to involve Parliament at all in the article 50 process. They have been forced to produce a White Paper, and they have been forced to concede a final vote. Before Christmas, the Secretary of State was standing at the Dispatch Box refusing to confirm that there would be a vote in this House at the end of the exercise.

The decision to leave was taken on 23 June last year. What matters now are the terms agreed under article 50, and the nature and extent of our new relationship with the EU. In her Lancaster House speech, the Prime Minister adopted a risky approach—a wish list with gaps, inconsistencies and an unacceptable fall-back position. Now we need time to debate this White Paper properly in this House and a vote on its contents.

On the question of votes, from flicking through the White Paper, I see that all that is said about the final vote, at paragraph 1.12, is that the final deal that is agreed will be put to

“a vote in both Houses of Parliament.”

We have tabled amendments for consideration next week that seek a meaningful vote—a vote in this House before a vote is taken in the European Parliament. Without such a vote, all hon. Members will have to watch on their screens the European Parliament debating our deal before we get to express any views about it. That is completely unacceptable and it demeans this House.

Finally, I note from a perusal of the White Paper that there is nothing that progresses the situation of EU nationals in this country. We have been calling time and again for unilateral action to be taken before article 50 is triggered, yet the White Paper disappoints on that front.

[Mr Davis]

Let me start with the purpose of the White Paper: to inform all the debates—not just today’s—in the coming two years. The shadow Brexit spokesman is exactly right: what matters above all else is not the amour propre of the Labour party or whatever, but the terms that we get for this negotiation. That is about the future of Britain, and it is what this House should care about first and foremost.

The hon. and learned Gentleman talks about a meaningful vote, but I have not yet quite understood what he means by that. I have been here long enough to have voted thousands of times in this House and I have never yet voted on something that I considered not meaningful. Every vote in this House is meaningful.

There will be a meaningful vote at the end. The hon. and learned Gentleman makes much of the time that this has taken, but I have been saying for a long time to the Select Committee—its Chairman is not here—that it was inconceivable that we would not have a meaningful vote at the end of this process.

The hon. and learned Gentleman’s last point was on EU nationals. I have a track record of defending the interests of people who are under pressure. Indeed, the last thing—pretty much—the leader of his party did was to go with me to Washington to get the last Brit out of Guantanamo Bay. I am not going to be throwing people out of Britain, and for the hon. and learned Gentleman even to suggest that is outrageous. Let me say this to him: I want the European Union nationals here to have all the rights they currently have, but I also want British citizens in Europe to have their rights. We owe a moral debt to EU nationals here, but we owe a moral and legal debt to the citizens of Britain abroad. We will protect both.

Oral Answers to Questions

Debate between Keir Starmer and David Davis

Thursday 26th January 2017 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

Now that we have a commitment to a White Paper, the role of Parliament in the article 50 process needs to be determined, which is why Labour will seek to table an amendment to the proposed article 50 Bill to require the Secretary of State to lay before the House periodic reports, at intervals of no less than two months, on the progress of the negotiations under article 50. Will the Secretary of State commit now to the principle of periodic reports? [Interruption.]

[Mr Davis]

From behind me I hear, “Like he’s not going to do that.” The hon. and learned Gentleman says two months. Since September, over five months, I have made five statements in front of this House, participated in 10 debates, and appeared in front of a number of Select Committees. That process will continue. I suspect that two months will be a rather unambitious aim.

[Keir Starmer]

The role of Parliament at the end of the exercise will also be important. The Prime Minister has said that MPs will have a vote on the final agreement. Will the Secretary of State today state categorically that MPs in this House will have no less involvement in the process and no less a say over the final article 50 agreement than MEPs in the European Parliament?

[Mr Davis]

The role of the MEPs will be somewhat limited and peripheral, in many respects. Mr Verhofstadt will be allowed at the treaty negotiations, but I do not think he will be making the decisions.

New Partnership with the EU

Debate between Keir Starmer and David Davis

Tuesday 17th January 2017 Commons Chamber

[Keir Starmer]

Mr Speaker, let me give three examples without the details: the European Aviation Safety Agency, which deals with safety; the European Medicines Agency; and Europol, which I worked with for many years. Those are the bits of the EU that we should be seeking to retain, not throw away.

It was the previous Prime Minister who got us to this place without any forethought or planning. This Prime Minister has now chosen a risky implementation plan. She owns the consequences now, in 2019 and beyond.

[Mr Davis]

When we started down this route, I said to the House that the Government had been given a national instruction that we would attempt to interpret in the national interest. That seemed to me to be the right approach. Rather than a 52/48 approach, it is an approach that encompasses everybody’s interests. I hope that we have done that today.

The hon. and learned Member for Holborn and St Pancras (Keir Starmer) is a very talented man, and his questions were as forensic as we would expect. He asked about membership of the single market, so we answered that. We laid out the claims on the customs union, which was another of his questions. He asked for detail to scrutinise the plan to see where we are going. Within the context of not undermining our negotiation, that is entirely what we have tried to do. I had hoped to see some Opposition Members support what we think is a responsible, thoughtful but realistic plan that takes on board the instruction that we have been given by the British people to take us out of the European Union, but in a way that preserves our interests as best we can, whether security interests, economic interests or whatever.

Let me deal with some of the specific points raised by the hon. and learned Gentleman. I will put aside my disappointment at the tone. He says that a free trade agreement will need to have a disputes resolution procedure. So it will; they nearly all do. It does not have to be the European Court of Justice, though. We can agree that he has just got the thrust of it wrong. As for the other things: tariff-free, I agree; impediment-free, I agree. Alignment of regulation? That may well be necessary in some aspects, but we will see as the negotiation develops. On goods and services, I agree. The hon. and learned Gentleman is not putting up any hurdle that, frankly, we do not intend to cross ourselves.

Now, on this question of threats, this was not a threat. It was the Chancellor saying in an interview, “Well, if you go down the route of a punitive approach, this is the consequence and this is what will happen.” Nations defend themselves. Nobody says it is what we want to do. It is specifically not what we want to do. We want the freest, most friendly possible relationship we can get, and that is what we will set out to do.

The other areas, including questions on matters such as criminal justice, home affairs issues and so on, will develop as we go through the negotiation. The Prime Minister is a very distinguished ex-Home Secretary—the longest-lasting Home Secretary in modern times—and she has as good a grip of our home affairs needs as the ex-Director of Public Prosecutions has. He can take it as read that we will, over time in this House and, most particularly, in the negotiating chamber with the Europeans, address all the issues he raised. I happen to think that they will have as much interest in resolving those issues as we do. The negotiation is predicated on us doing what is in the interests of everybody: ourselves, the Europeans and all our neighbours in our part of the globe. That is what we intend to do and what we intend to deliver on.

The Government's Plan for Brexit

Debate between Keir Starmer and David Davis

Wednesday 7th December 2016 Commons Chamber

[Keir Starmer]

I have made it absolutely clear that nothing in today’s motion precludes any party, including my own, from tabling an amendment to proposed legislation, if there is proposed legislation, and voting on it. I am astonished that some Members are willing to pass up the opportunity to have a vote in the first place and to restrict our ability to debate amendments.

[The Secretary of State for Exiting the European Union (Mr David Davis)]

I do not want to break the hon. and learned Gentleman’s flow, but I want to make a factual point. Will he please answer the question that has just been put to him? Given that he supports the amendment, does he think it reasonable that some want to frustrate and slow down the article 50 process?

[Keir Starmer]

I have made it absolutely clear—and I will make it absolutely clear again—that the purpose of the motion calling for a plan is not to frustrate or delay the process. That is not why we are calling for a plan. This presents a challenge for the Government, because they now need to produce a plan in good time to allow the proper formalities and processes to be gone through. The timetable is more of a challenge for the Government than it is for the Opposition.

--- Later in debate ---

[Keir Starmer]

I think it is pretty straightforward and I have said this on a number of occasions. I fully accept that the Government will enter into confidential negotiations for a number of months and that producing a plan should not undermine that process. This is not the first time that I have said that; I have said it repeatedly. Some argue that we should not produce a plan because saying anything might undermine the negotiations, but I do not accept that. I do, however, accept that there is a level of detail and of confidential issues and tactics that should not be disclosed, and I have never said otherwise.

I want to put the contrary proposition, to see how comfortable Members really are with it. Absent of a plan and of our knowing the objectives and starting position, the Government would then negotiate for two years without telling us any of that detail. Are any Members of this House content not to know any of that between now and March 2019? Hands up who does not want to know that and is happy to say, “I don’t need to know. Whatever you are negotiating is fine by me.”

[Mr David Davis]

The hon. and learned Gentleman is an experienced lawyer, so I am sure that putting up Aunt Sallies is old hat to him. Given that he thinks that the alternative is telling the House nothing, I ask him what he thinks of these comments, which I have made eight times to this House:

“As I have said several times in debates that the hon. Gentleman has attended”—

this was in response to the hon. Member for Kilmarnock and Loudoun (Alan Brown)—

“I will make as much information public as possible without prejudicing our negotiating position.”—[Official Report, 20 October 2016; Vol. 615, c. 952.]

[Keir Starmer]

I heard that point being made and I understand and respect the Secretary of State’s position on this issue and his history on issues of scrutiny and accountability. I also understand why he feels uncomfortable not disclosing the information that can be disclosed, but the motion moves the issue on and makes it clear that there will be a plan, while, of course, preserving that which needs to remain confidential.

I acknowledge that the Secretary of State made those comments and that he has said on more than one occasion that, when the Government have reached a judgment on the customs union—I assume that he also means when they have reached a judgment on the single market—they will make that position public. I therefore anticipate that the Secretary of State has no difficulty with a plan that sets out the position on the single market, the customs union, transitional measures and the like, because that is the direction of travel that I have understood him to be going in. The plan commits him to it and puts it in the framework of scrutiny and accountability that will come with proposed legislation on article 50, but I do acknowledge what he has said.

[Mr David Davis]

I thank the hon. and learned Gentleman for that acknowledgment, but let me pick up on the issues that he has raised. There may be circumstances in which the criteria and aims are clear, but the individual policy is not. There may be several options and it might be in our negotiating interests to keep more than one of them open. Surely that does not necessarily require that we specify in detail any individual line of pursuit.

[Keir Starmer]

I understand the Secretary of State’s point. To some extent, we will probably return to this debate as and when the plan materialises, but it is important there is no mischaracterisation. Asking for a plan setting out the objectives is not to seek to undermine the UK’s negotiating hand, nor is it to seek a running commentary. It is, in fact, to seek to have clarity, scrutiny and accountability.

--- Later in debate ---

[Keir Starmer]

Yes; good. We are working with our European colleagues on that issue, but that is after article 50 has been triggered. We are discussing what comes before. Of course, there are stages in the process. The plan is important because it is the start of the process: it sets the scene and the direction of travel. Once article 50 has been triggered, MEPs will be involved in the process, because they have a vote at the end of the exercise. I acknowledge that the Secretary of State has said on a number of occasions that whatever information they have, we will have. I should jolly well hope so. The idea that MEPs would be provided with more information about the negotiations than us would be wrong in the eyes of everyone in the House. The Secretary of State made that commitment early on, and it was the right commitment to make. He will not be surprised to learn that I intend to hold him to that every step of the way. I am sure that we will meet at the Dispatch Box to discuss precisely that.

[Mr David Davis]

rose—

[Keir Starmer]

I have not finished dealing with the intervention from the hon. and learned Member for South East Cambridgeshire (Lucy Frazer). This is about what happens before the negotiations in the run-up to article 50. There will then be a two-year tunnel of negotiations. Then there is what happens at the end. MEPs will have a vote, and if they vote down the deal there will be no deal. I have no doubt that the Secretary of State will concede that we will have a vote in the House, because the idea of MEPs voting, but not the House, on the final deal is wrong in principle. He might be able to indicate now that there will be a vote at the end of the process on the deal, in the same way that MEPs will have a vote, as that would be helpful for this side of the House.

[Mr David Davis]

I apologise for intervening again, but we have said that procedures under the Constitutional Reform Act 2005 will apply. That is straightforward. I have said that at least three times to the House.

The hon. and learned Gentleman has asserted that there is no vote between whatever happens as a result of the court case and the ratification process. The great repeal Bill will be presented to the House during that two-year period, and after that there will be a series of consequential legislative measures, some primary, some secondary, and on every measure the House will have a vote and say.

[Keir Starmer]

I acknowledge that, but my response is exactly the same as my previous response. The timetable for the great repeal Bill applies after article 50 has been invoked, so that does not help us with the plan and the starting position. That is why this part of the process has to be gripped now, because what happens between now and 31 March really matters to the starting position. I accept that after that the great repeal Bill will be introduced and debated, and no doubt there will be votes on its provisions, but essentially it is a Bill that indicates what will happen at the end of the process, rather than a Bill that deals with the plan—the starting position—or the process.

--- Later in debate ---

[The Secretary of State for Exiting the European Union (Mr David Davis)]

I beg to move an amendment, at end add:

“, consistently with the principles agreed without division by this House on 12 October; recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.”

Before I speak to the amendment, let me make a few factual remarks to the Labour spokesman, the hon. and learned Member for Holborn and St Pancras (Keir Starmer). He ended by saying that there is no mandate for hard Brexit. To be honest, I do not know what hard Brexit means. The mandate was to leave the European Union. We should keep that in mind. He quite properly raised the issue of Northern Ireland. It is simply because I am standing at the Dispatch Box today that I am not chairing a joint ministerial committee of the devolved Administrations on exactly these issues. There has been considerable progress on that; I can brief him on that, if he does not know about it. Some of it, almost by definition, is confidential. He should take it as read that the process has been going on for some time and is quite well advanced.

The hon. and learned Gentleman raised the issue of the Budget Responsibility and National Audit Act 2011. He may remember that I was a Chairman of the Public Accounts Committee, and I am reasonably familiar with National Audit Office and OBR operations. The condition that applies to any information that we put in the public domain—that it will not bias or undermine the negotiation—applies equally here; if we were to give information to the OBR, there would be the same telegraphing of what we are doing. It would be very inappropriate for another reason as well. This is a negotiation, not a policy statement, so where we are aiming for—I think we may be on the same page on this—may not be the exact place we end up, and I think he would understand that.

[Keir Starmer]

To be clear, I was not making the argument that the OBR required confidential information, the disclosure of which would undermine negotiations; my point was simply that the plan must be sufficiently detailed to let the OBR do its job in a way that lets it provide the scrutiny it is supposed to.

[Mr Davis]

I take that point. As I make progress through what I have to say, I will explain why, in some respects, that is not practical.

This debate is very similar to the last Opposition day debate Labour chose to have on Brexit, and it really is the last clause of the motion that extends beyond that. The Government and I certainly can accept the motion with the amendment that whatever plan we set out is consistent

“with the principles agreed without division by this House on 12 October”,

and that the House

“recognises that this House should respect the wishes of the United Kingdom as expressed in the referendum on 23 June; and further calls on the Government to invoke Article 50 by 31 March 2017.”

--- Later in debate ---

[Mr Davis]

In fact there is a law that applies to this—the Constitutional Reform and Governance Act 2010—so we are, in effect, bound by that.

[Keir Starmer]

This is important, so can the Secretary of State say in terms that there will be a vote on the final deal in this House? I understand what he says about the underpinning statutes, but can he say simply, for the record, that there will be a vote on the final deal in this House?

[Mr Davis]

All I can say is what I have said before: that is what I expect. It is as simple as that.

I want to pick up on the point about parliamentary scrutiny in a little more depth, if I may—

--- Later in debate ---

[Mr Davis]

Not at the moment. We have made our aims clear on immigration, on the ECJ, on workers’ rights and, in fact, on European Union legislation more broadly. We have clear aims on justice and home affairs, on security and, finally, on trade. It is important that the House understands what we are aiming for, but it is also important that we do not close off options before we absolutely have to. Just this weekend the leader of the Opposition suggested that he would seek to tie the hands of the Government regarding certain outcomes, such as a particular status in terms of the European market. To do so would seriously undermine the national interest, because it would undermine our ability to negotiate freely.

As I said at my first appearance at the Dispatch Box in this role, Parliament will be regularly updated and engaged. Keeping in mind those strategic aims and the fact that to reveal our position in detail or prejudge the negotiations cannot be in the national interest, we will set out our strategic plans ahead of the triggering of article 50. It is well documented that when we have decided to trigger article 50, the Government will notify the European Council. As I have said on several occasions, the House was always going to be informed in advance of the process. We are happy to support the spirit of today’s motion, with the vital caveat that nothing we say should jeopardise our negotiating position.

The Government amendment underlines the timetable for our departure, affirming the Prime Minister’s intention to notify by 31 March. Many Opposition Members pay lip service to respecting the result of the referendum, while at the same time trying to find new ways to thwart and delay. The shadow Cabinet cannot even decide whether it respects the will of the people. We are well aware of the desire of my opposite number to keep his “options open” with regard to a second referendum—the most destructive thing we could do for our negotiating position at the moment.

[Keir Starmer]

Will the Secretary of State give way?

[Mr Davis]

No.

Today we will see whether the Opposition are prepared to back Britain and support our plan to follow the instruction of the British people and leave the European Union. The Government are absolutely determined to honour the decision made by the British people on 23 June.

Oral Answers to Questions

Debate between Keir Starmer and David Davis

Thursday 1st December 2016 Commons Chamber

[Mr Davis]

My hon. Friend is absolutely right: this point is wider than just the issue of article 50; it goes right to the heart of the operation of the Crown prerogative.

[Keir Starmer (Holborn and St Pancras) (Lab)]

The Prime Minister and the Secretary of State have repeatedly said that there will be no running commentary on their article 50 plans, yet there is one. It is being provided by leaked memos, notes caught on camera and the near-constant comments of the Foreign Secretary to anyone who will listen to him. This is serious because it is damaging the prospects of the negotiations getting off to a good start. The Secretary of State must realise that this is going to continue throughout the two years unless and until he discloses to this House the basic plan the Government are adopting. So my question is simple: when is he going to do so?

[Mr Davis]

The answer is the same one I have given the hon. Gentleman before to exactly the same question, which is that we have already set out the strategic aims—he knows that. He is also aware that we do not want to cut down the options available on things such as the old issue of market access. At this stage, we do not wish to go into great detail on the justice and home affairs front, on which I suspect that we absolutely agree, because we want to get the best possible outcome for Britain. The dominating factor here is not what is in the newspapers, but what is the best outcome for Britain in the long run.

[Keir Starmer]

The question was when will we see the plan. On 7 November, when the Secretary of State was last at the Dispatch Box, he was asked whether the Government were intending to keep the UK in the customs union. He answered by saying:

“We will make that judgment in due course and make it public in due course.”—[Official Report, 7 November 2016; Vol. 616, c. 1269.]

There are now just 121 days left until the end of March next year. Time is running out. Another simple question is: when does the Secretary of State intend to honour his commitment and make the Government’s position on the customs union clear?

[Mr Davis]

One hundred and twenty one days is a long time in policy terms, I am afraid. The simple truth is that there is one chance in this negotiation. This is unlike almost anything else that comes in front of this House. With everything else, we can come back and repeal it, change it or amend it later. This is a single-shot negotiation, so we must get it right, and we will get it right by doing the analysis first and the notification second. I will do that. I will meet my promise to the hon. and learned Gentleman—there is no doubt about that—but he will just have to wait until the analysis is complete.

Article 50

Debate between Keir Starmer and David Davis

Monday 7th November 2016 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I thank the Secretary of State for advance sight of his statement. This is the third statement that he has made to the House in just a few months. Nobody could accuse him of not being willing to turn up to the Dispatch Box; it is just that each time he does so, we leave none the wiser about the Government’s basic approach to the negotiation. Today was no different; he has not even made clear what will happen if the Government lose their appeal. I was going to say it is all process and no substance, but I realised I said that last time and that I am in danger of repeating myself—there are only so many times I can say, “Is that it?”

What we do know is that last week was not a good week for the Government. On Thursday, the High Court ruled the Prime Minister is acting unlawfully in seeking to use prerogative powers to invoke article 50. The Court had to remind the Prime Minister that only Parliament can make and repeal laws, and it is because the Prime Minister is seeking to use prerogative powers to change the European Communities Act that the judgment went against her. Only Parliament can do that. As the Court had to make clear to the Prime Minister, when it comes to legislation, Parliament is sovereign. That sovereignty matters.

The Government have approached their task in the wrong way and their approach is now unravelling, and I am afraid to say it is unravelling in the most divisive and ugly way. In the aftermath of the High Court judgment, we saw a series of appalling personal attacks on the judges, including the suggestion that they are “enemies of the people”. Some of us have worked in countries where judges do as the Executive tell them, and believe you me it is highly corrosive of democracy. Robust comment on, and criticism of, court judgments is right in a country that respects free speech, but we all have a duty to stand up for the rule of law and the independence of the judiciary. The Lord Chancellor has a special duty to do so because, by convention, judges do not engage in public debate and are thus unable to defend themselves. Yet the Lord Chancellor has been too slow and too reluctant to do her duty. It was disappointing that the Secretary of State did not take this opportunity to put on record the Government’s clear and unambiguous condemnation of personal attacks on our judges, and I ask him to do so now.

Turning to the approach that the Secretary of State has set out, it is clear that the Government intend to appeal last week’s ruling. Clearly, legally, they are entitled to do so, but would it not be better for the Government to stand back and ask whether it is right to continue with the approach they are taking? No one expects the Government to reveal the detail of their negotiating hand, but there are big headline issues that matter to everyone in every part of the UK. What relationship with the single market are the Government aiming for? What is the opening stance on the customs union? How do the Government envisage our future co-operation with EU partners in combating terrorism and serious crime? Do the Government have a plan for transitional arrangements in March 2019? These basic questions require clear answers.

Labour has repeatedly made it clear that we accept and respect the outcome of the referendum—[Interruption.] I have said that every time I have stood at this Dispatch Box. There is a mandate to leave. We will not frustrate the process by voting down article 50, but we cannot have a debate in a vacuum. The future relationship of the UK with our EU partners is at stake. The future relationship of the UK in the world is at stake. The Prime Minister simply cannot keep all this to herself. The Government need to act in the national interest—build a consensus; act not for the 52%, but for the 52% and the 48%; and put the country first. I call on the Secretary of State to abandon the furtive Executive approach that has been taken so far and to commit to a course of action that respects the role of Parliament and provides for proper scrutiny and challenge—to commit to a course of action most likely to deliver the right outcome for all of us and for generations to come.

[Mr Davis]

The hon. and learned Gentleman finishes by calling me “furtive”, having started his contribution by commending me for the number of times I have appeared at the Dispatch Box—an interesting idea. I thank him for his reply none the less. I shall respond to his points in a moment, but let me first say that I am determined to work constructively with Opposition Members who want to make a success of Brexit. I have said that the Government will be as open and transparent as possible as we approach these vital negotiations—this must be the 20th time I have said that—and that Parliament will be closely and repeatedly engaged in the process of exit.

The hon. and learned Gentleman suggests that his party respects the referendum result and is not seeking to undermine the decision of the British people, but I have to say that the approach being taken by certain Opposition Members rather gives the game away. The shadow Foreign Secretary, the hon. Member for Islington South and Finsbury (Emily Thornberry), has declared that what the referendum result—the biggest democratic mandate for a course of action achieved by any Government—needs is an “injection of democracy”. The hon. Member for Pontypridd (Owen Smith) has suggested that Labour would amend any article 50 Bill to bring about a second referendum.

The right hon. Member for Sheffield, Hallam (Mr Clegg), the former Deputy Prime Minister, who is in the Chamber, suggested after last week’s result that his party would seek to amend any legislation on triggering article 50 to allow for a second referendum on our new relationship with the EU. He did not like the first answer given by the voters, so he is seeking to put the question all over again in the hope of getting a different one. These are not constructive proposals to enable Britain to make a success of Brexit. I am sorry to say that they look increasingly like attempts to thwart and reverse the decision that was taken on 23 June—[Interruption.]

Oral Answers to Questions

Debate between Keir Starmer and David Davis

Thursday 20th October 2016 Commons Chamber

[Mr Davis]

The right hon. Gentleman identifies a very important point, as I would expect from him, and that is certainly one of our major aims. I reiterate the point that I made to the new Chairman of the Brexit Committee: we start at the point we leave with absolute equivalence, because we meet all of the requirements at that point, and I would seek to ensure that that was maintained.

[Keir Starmer (Holborn and St Pancras) (Lab)]

The discussions on financial services are intended, as I understand it, to build consensus on the Government’s plans. Eight days ago, the Government gave a clear commitment from the Dispatch Box that

“there should be a transparent debate on the Government’s plans for leaving the EU”.—[Official Report, 12 October 2016; Vol. 615, c. 414.]

Yesterday I wrote to the Secretary of State to ask a very simple question: when will the plans be made available? That is an important question because we need time to debate and scrutinise the plans before article 50 is invoked, and no doubt the new Brexit Committee will want to see them. The Secretary of State replied promptly to my letter, but failed to answer that central question, so I ask him again: when will the Government plans for leaving the EU be made available to this House?

[Mr Davis]

I could not have been clearer that I consider engagement with Parliament on the process of exiting the EU to be of paramount importance. That was the whole thrust of my speech in last week’s debate and of everything I said previously to various Select Committees and to the House. That is why I supported the Opposition’s motion last week that

“there should be a full and transparent debate on the Government’s plan for leaving the EU”.

That was the hon. and learned Gentleman’s wording.

It has always been our intention that Parliament should be engaged throughout. However, the House also agreed a vital caveat that such a process must respect

“the decision of the people of the UK when they voted to leave the EU on 23 June and does not undermine the negotiating position of the Government”.

There will be a balance to be struck between transparency and good negotiating practice, and I am confident that we can strike that balance. Over the course of the coming—[Interruption.] Whether it is six months or less, I do not know, but over the course of the coming period before the triggering of article 50, much information will be put out and I think that the House will be in no doubt about our aims and strategic objectives.

[Keir Starmer]

The question was: when will the plans be made available? For the second time, it has not been answered. The plans are important not only so that this House can hold the Government to account, but so that some certainty can be provided. There has been so much evidence of uncertainty. I met representatives of the Council, Commission and Parliament in Brussels yesterday, and it is absolutely clear that the Prime Minister’s words about Brexit at her party conference have been widely interpreted as an indication that she wants the UK to leave not just the single market, but the customs union. I have no doubt that that will come up in her discussions in Brussels this evening, but will the Secretary of State assure the House that that is not the Government’s starting position for the article 50 negotiations?

[Mr Davis]

Actually, it is a good example of the reason why we are taking our time to come to a conclusion on this. [Laughter.] No, these matters have serious implications, whichever way we go with them. Being inside the customs union gives some advantages but cuts off, to some extent, free trade areas around the rest of the world. Being outside the customs union creates some handicaps but opens up those other benefits. That decision is not part of what the Prime Minister has said to the European Union.

Parliamentary Scrutiny of Leaving the EU

Debate between Keir Starmer and David Davis

Wednesday 12th October 2016 Commons Chamber

[Keir Starmer]

I will make some progress if I may. I have only got to page 2, and I have taken about 10 interventions already. If Members will bear with me, I will press on.

On Monday, the Secretary of State confirmed that the Prime Minister will invoke article 50 no later than the end of March next year. Unless Parliament has a meaningful role in shaping the terms of Brexit between now and then—a maximum period of just five-and-a-half months—it will be too late. I can see what will happen. Once the negotiating process has started, there will be a claim by the Secretary of State that it would be inappropriate to put anything before the House by way of detail. Once the process is over, the risks of any debate will be purely academic.

[The Secretary of State for Exiting the European Union (Mr David Davis)]

On a point of information, that is not correct. I have already said that it is not correct. In talking to the Lords Committee in September, I said that the House would have at least the information available to the European Parliament. What the hon. and learned Gentleman says is just not the case.

[Keir Starmer]

I am grateful for that intervention. I read the transcript of the Secretary of State’s evidence to that Select Committee. What was put to him was that, on one view, the European Parliament would have more answers than this Parliament. In 2010, as he knows, there was a framework agreement between the Commission and the European Parliament. It states:

“Parliament shall be immediately and fully informed at all stages of the negotiation and conclusion of international agreements, including the definition of negotiating directives.”

That goes a long way further than I understood the Secretary of State’s position to be on Monday, and in his first statement. I would be very pleased to hear from him if he can confirm now that at least that part of scrutiny is guaranteed.

[Mr Davis]

I can.

[Keir Starmer]

Thank you.

This is a matter not just of process, but of real substance. Both those who voted to leave the EU and those who voted to remain recognise that different negotiating stances under article 50 could provide radically different outcomes, each of which carries very significant risks and opportunities. That is undoubtedly why there is a keen debate going on behind the scenes on the Government’s side. Everybody recognises the potential consequences of adopting the wrong opening stance.

--- Later in debate ---

[Keir Starmer]

I do agree with that, absolutely, and we will throw our weight behind it. In fairness, the Prime Minister signalled that by her early visits as soon as she assumed office. I was hesitant to answer that question in case I got relegated from second to third or even fourth-rate lawyer. I will press on—

[Mr David Davis]

rose—

[Keir Starmer]

—unless the Secretary of State is about to give me a ranking.

[Mr Davis]

I was just about to say that the hon. and learned Gentleman will remember from Monday that I reiterated the support for his standing as a lawyer.

[Mr Iain Duncan Smith (Chingford and Woodford Green) (Con)]

rose—

--- Later in debate ---

[Keir Starmer]

I really do not think I can be criticised for not taking enough interventions.

Concerns over freedom of movement must be balanced by concerns over jobs, trade and the strength of our economy. Striking that balance and navigating our exit from the EU will not be an easy process, and it will require shrewd negotiating. The Government must not give up on the best possible deal for Britain before they have even begun. They must put the national interest first and not bow to pressure from Back Benchers for a hard Brexit. That means prioritising access to the single market, protecting workers’ rights, ensuring that common police and security measures are not weakened, and ensuring that all sectors of our economy are able to trade with our most important market. It also means bringing the British people together as we set about leaving the EU.

I touched on the tone of discussions on Monday. Many people are appalled at the language that has been used in relation to exiting the EU. An essential step in that process is to publish the basic plans for Brexit and to seek the confidence of the House of Commons. The motion is intended to ensure that scrutiny and accountability. I will listen, of course, to what the Secretary of State says about his amendment.

[Mr David Davis]

On a point of information, does the motion require the guarantee of a vote? Is he after a prior vote?

[Keir Starmer]

The motion before the House is clear about scrutiny, which is the first part. There is a question of a vote, and I will make it absolutely clear that I am pressing for a vote. This exercise will obviously go on for some time, and we will have plenty of skirmishes. I am anxious that, first, we have proper scrutiny and also a vote. What I do not want to do is jeopardise the scrutiny by a vote against the vote. Anyone on either side of the House who wants scrutiny can happily support the motion, and I will listen carefully to what the Secretary of State says about the amendment.

This is a serious challenge, and these are the most important decisions for a generation. The role of the House is a fundamentally important issue, and we have to ensure that it is compatible with scrutiny and accountability.

--- Later in debate ---

[Mr Davis]

Not at the moment. Let me just finish this section of my speech before giving way to one of my colleagues.

We have these fairly obvious, overarching strategic aims. They are very clear; they are not remotely doubtful. It must be that Labour does not want to recognise that because it finds some of those aims uncomfortable. I am not entirely sure what Labour’s policy is on European immigration. It is completely unspecified.

[Keir Starmer]

Are we going to get more than those four short sentences? Are we going to get a plan? That is a simple question.

[Mr Davis]

The hon. and learned Gentleman can wait until the later part of my speech, when I will give him the exact answer. He will have to wait for that.

The reason this has not been promised before the end of March is that it takes time, as the hon. and learned Gentleman will understand. We are meeting organisations from across the country, from the creative industries, telecoms, financial services, agriculture and energy, including the National Council for Voluntary Organisations, Universities UK and the TUC. All those organisations are putting their concerns to us. Some of those are incredibly serious concerns, which we have to deal with. We are focusing on dealing with those concerns, establishing what opportunities there are—there are significant opportunities, too—and then devising a negotiating strategy that serves the interests of the whole country: all of them, not one at a time.

Next Steps in Leaving the European Union

Debate between Keir Starmer and David Davis

Monday 10th October 2016 Commons Chamber

[Keir Starmer (Holborn and St Pancras) (Lab)]

I welcome the Secretary of State’s statement and thank him for advance notice of it.

The decisions the Government take over the next few months and years on exiting the EU will define us for a generation, so I look forward to seeing the Secretary of State regularly at the Dispatch Box. However, I have to say that he is not making a very good start. His first statement on 5 September was widely criticised for saying nothing, and this one is not much better. When I first read it, I thought it was the statement he gave last time—a bit of process and no substance—but I congratulate him on a bit of humour in the phrase, “we are committed to providing clarity where we can”.

During the referendum campaign, much was made by the leave side of parliamentary sovereignty. In his statement, the Secretary of State said, “We will return sovereignty to the institutions of this United Kingdom.” Yet it seems that the Government want to draw up negotiating terms, negotiate and reach a deal without any parliamentary approval. That is not making Parliament sovereign; it is sidelining Parliament. That is why Labour is calling for a vote on the basic terms proposed by the Government before article 50 is invoked. Some argue that that is a device to frustrate the process. It is nothing of the sort. It is making sure that we get the best possible deal for Britain; it is making sure that the Government actually have a plan; and it is basic accountability on some of the most important decisions of our lifetime.

Let us remind ourselves that the Government had no plan for Brexit in their 2015 manifesto. In fact, they had a manifesto commitment to

“safeguard British interests in the single market.”

Whitehall famously made no plans for the leave vote, and the Prime Minister did not explain her plans for Brexit before assuming office. Now the Government plan to proceed to an exit deal without a vote in this House, which is wholly unacceptable in any democracy. If there is to be no vote when the terms of negotiation are agreed, at what stage in the process does the Secretary of State propose that the basic terms of the article 50 negotiations, about which he said nothing today, should be debated and voted on in this House?

The Secretary of State makes much of the great repeal Bill, so we are having a conversation and debate now about what will happen at the very end of the process instead of what is happening at the beginning of the process. That Bill will not provide for parliamentary scrutiny of the article 50 negotiating plans; it is about what will happen after exit. Can he confirm that the vote on the great repeal Bill will come after, not before, article 50 is invoked next March?

We accept and respect the result of the referendum, but neither those who voted to remain nor those who voted to leave gave the Government a mandate to take an axe to our economy. Throughout the process, the national interest must come first, but by flirting with hard Brexit the Prime Minister puts at risk Britain’s access to the single market, rather than doing the right thing for jobs, business and working people in this country. In fact, I observe that the words “single market” did not appear at all in today’s statement. So much for putting the national interest first.

We need clarity, and we need answers. Can the Secretary of State assure the House today that the Government will seek continued access to the single market on the best possible terms? Will he also assure us that they will end the divisive and hostile tone of Brexit discussions in recent weeks? This is the defining issue of this Parliament and, quite probably, Parliaments to come. The job of any responsible Government is now to bring the country together, not to drive it apart. I hope that he will take that approach.

[Mr Davis]

I start by welcoming the hon. and learned Gentleman to the Dispatch Box. It is a pleasure to appear opposite him.

I will read to the hon. and learned Gentleman a warning from his own party’s shadow Home Secretary, who has said of his comments:

“We have to be really careful that we’re not seen to be not listening. There will be scrutiny but it is, I think, not helpful to pretend we can reverse the result.”

That is a summary from inside the hon. and learned Gentleman’s own party, which does not really support where he is coming from today.

The hon. and learned Gentleman is a lawyer by training and career. Article 50 is a prerogative power in the view of all the lawyers we have spoken to, and in the view of the Attorney-General, who will be presenting that case in court in the coming week. It will be decided in court, which the hon. and learned Gentleman ought to take seriously.

As for the hon. and learned Gentleman’s comments about parliamentary accountability, my Department has effectively existed since the middle of the summer, and in the two weeks of parliamentary sittings that we have had since, we have had two statements and a couple of debates, and we will have his own debate on Wednesday. We are announcing a major piece of legislation very early, and successor legislation to that Bill will also take place. A new Select Committee will be set up to oversee the Department, and there will be numerous debates over the next two years. At the end of the process, we will follow each and every legal and constitutional convention and requirement that applies to all European legislation and treaties. I cannot see how the hon. and learned Gentleman thinks that is in some way not accountable.

After that has happened, Parliament will be able to amend all European Union law, which it has been unable to do before—a fact that the hon. and learned Gentleman overlooked in his comments about accountability. I am afraid he really has to understand the distinction between accountability—I have a little bit of experience of holding Governments to account—and micromanagement, which is what he is trying to do. We have made our view on the negotiations pretty plain. We have said very clearly that we want to control borders. Does the hon. and learned Gentleman agree with that? He can nod or shake his head. Does he want to control borders? He is absolutely stationary—no sign. We want to control our laws. Does he agree with that? No sign. We want the most open barrier-free access to the European market, full stop. That is very clear.

Investigatory Powers Bill

Debate between Keir Starmer and David Davis

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Keir Starmer]

I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.

As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.

Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[Mr Davis]

I was not intending to be discourteous, Mr Deputy Speaker.

The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.

[Keir Starmer]

Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.

Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.

The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.

As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.

I wrote to the Minister that the review to be carried out by David Anderson should be

“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,

that it should

“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,

that it should

“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,

and that it should

“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”

The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:

“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”

I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.

The Minister’s letter continues:

“In relation to your second point”—

this is really important—

“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”

That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.

[Mr David Davis]

The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of the hon. and learned Member for Edinburgh South West (Joanna Cherry) is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.

[Keir Starmer]

There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.

Investigatory Powers Bill

Debate between Keir Starmer and David Davis

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Keir Starmer]

That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.

We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.

I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.

[Mr David Davis (Haltemprice and Howden) (Con)]

The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?

[Keir Starmer]

I take that point, although obviously one of the letters is not mine—

--- Later in debate ---

[Mr David Davis]

rose—

[Keir Starmer]

I am happy to give way again straight away.

[Mr Davis]

There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.

[Keir Starmer]

I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must

“consider the matters referred in subsection (1)”—

necessity and proportionality—

“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.

That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.

As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.

I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.

The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.

[Mr David Davis]

I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.

[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.