Taxation (Cross-border Trade) Bill

Debate between Lord Clarke of Nottingham and David Davis

3rd reading: House of Commons & Report stage: House of Commons
Monday 16th July 2018 Commons Chamber

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

For the convenience of members of the Gallery, I should start by saying that this is not a resignation statement—that was last week. This week is a return to my normal business, as an ordinary Back Bencher carrying out the scrutiny of business. I thought that it would be rather mundane until I walked into what appears to be this rhetorical firefight that we have had so far in the debate.

Before I come back to that, the Taxation (Cross-border Trade) Bill and its partner, the Trade Bill coming tomorrow, are vital pieces of legislation. In the newspapers at the weekend, I read that some people were so cross with the White Paper that they were proposing to vote against this. Well, I do not think that they can be much more cross than I am with the White Paper, but I urge them not to vote against it. These are vital pieces of legislation and they are necessary, whether we have the Government’s White Paper policy, my old White Paper policy, the FTA that some have talked about or indeed even the World Trade Organisation outcome. In every single case, we need these Bills and therefore I will be supporting them.

I want to speak directly to the new clause proposed by my right hon. Friend the Member for Broxtowe (Anna Soubry). I will do so without impugning anybody’s motives or questioning whether somebody is acting in the national interest or not and I will not be firing off any gibes. I am not quite sure who she was referring to when she talked about having an excessive attachment to public office, but I do not think it was me. The simple truth is that this is a vitally important argument. It is central to the whole question of the economic aspect of Brexit—Brexit is not just economic; it is democratic as well, but it is central to that—and I will put to one side in my arguments the fact that being out of the customs union was in the Conservative party’s manifesto and therefore, in theory at least, one we are committed to.

The arguments go right to the heart of the principal issues. The proponents of the new clauses have a clear belief in the national economic interest, but they clearly believe that being outside the customs union will lead to a precipitate loss of trade and that the loss of the ability to make trade deals matters less than that potential loss of trade. That is the core of the argument. It is pretty straightforward in that respect.

Let us look at some facts. Back in 1999, the United Kingdom—we are talking about the customs union, so this is about goods—was exporting 60% of its goods to the European Union and 40% to the rest of the world. Since then, that has gone down by approximately 1% per annum, so it is now about 45% to the European Union and the rest to the rest of the world. Pretty much by the end of this decade, it is likely to be 60:40 in favour of the rest of the world, so because it takes away the right to our own commercial policy, the prospect of staying inside the customs union favours the shrinking minority of our trade over the expanding, fast-growing majority of that trade. That is the very simple, fundamental, initial point that we should take on board. It also presumes that being outside the customs union will significantly damage trade because there will be friction at the border.

[Mr Kenneth Clarke]

One of the most remarkable features of the last 20 years has been the globalised economy and the very rapid growth and emergence of major new markets, so inevitably the balance of our trade was going to grow with them and decline with the European Union. We want to remain as attractive to investors from the new economies as to the old. It does us no advantage in our dealings with China, Brazil and India to damage the value of our access to the European market. Outside events have altered this balance; it is not a failing of our EU arrangements.

[Mr Davis]

My right hon. and learned Friend was being uncharacteristically inattentive, because that is exactly what I said: because of the growth in world trade, that is what is going on. He is exactly right that we should take a great interest in the fast growth in world trade because we are best placed, probably of most countries in the world, to take the most advantage of that. Also within his comment was the presumption, which I was about to address, that friction in our trade with the European Union—low friction, but friction—will cause enormous damage.

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and David Davis

Ping Pong: House of Commons
Wednesday 20th June 2018 Commons Chamber

[Mr Davis]

My hon. Friend is right, and I shall come back to that point in a second.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The satisfactory amendment that left the House of Lords would oblige the Government to table a substantive motion if their agreement were being rejected. No doubt they would draft that with a view to commanding the majority of the House, but other people could table a substantive amendment with alternative proposals for how to proceed. My right hon. Friend rejects that, and is trying to replace it with a situation in which the Government do not have to put anything in their second amendment, except that they take note. Then, if anyone tries to table a substantive motion as an amendment, I will give you a pound to a penny, Mr Speaker, that the argument will be “If you pass this, it will mean no deal, because the Government are not going to negotiate this, and it will bring the thing to an end.”

I cannot for the life of me see why the Government are hesitating about the Lords amendment, except, of course, that they have come under tremendous pressure from hard-line Brexiteers in the Government, who caused them to reject the perfectly satisfactory understanding that had been reached with Conservative Members who had doubts last week.

[Mr Davis]

I am afraid that I do not agree with my right hon. and learned Friend, as he will be unsurprised to hear. I will not try to follow him down the path of what might happen and in what circumstances. I shall explain in a moment the reasoning behind the restriction of amendment, which is precisely accurate in this area.

Let me say this to my right hon. and learned Friend. He has been in the House even longer than I have, and he knows full well that very often, when matters are particularly important, the procedural mechanism of a motion does not actually determine its power or its effect. That goes all the way back to the Norway debate, which arose from an Adjournment motion tabled by the Chief Whip of the day, and which changed the course of the war. So I do not take my right hon. and learned Friend’s point at all.

The amendment sent to us by the other place does not offer those motions in neutral terms. It is therefore possible—indeed, I would predict, likely—that wide-ranging amendments will be tabled which would seek to instruct the Government how to proceed in relation to our European Union withdrawal. This may seem to be a minor point of procedure, but it is integral to the nature of the motions, and to whether they pass the three tests that I set out last week.

The debates and amendments of the last week have revolved around what would happen in the event of no deal. Let me explain to the right hon. Member for Leeds Central (Hilary Benn) the distinction between the amendments and the motion that we promised the House—indeed, I think that I first promised it to him as long ago as the article 50 debate. The provisions of the motion will come about if the House rejects the circumstances of a deal, but the amendments apply principally to the issue of no deal, which is really rather different. Let me also make it clear to the hon. Member for North Down (Lady Hermon) that I have never argued in favour of no deal. I do not favour no deal, and I will do what I can to avoid no deal. It is not an outcome that we are seeking, and, as things stand, I am confident that we will achieve a deal that Parliament can support. However, you cannot enter a negotiation without the right to walk away; if you do, it rapidly ceases to be a negotiation.

The Lords amendment undermines the strength of the United Kingdom in negotiations. There are plenty of voices on the European side of the negotiations who seek to punish us and do us harm—who wish to present us with an unambiguously bad deal. Some would do so to dissuade others from following us, and others would do so with the intention of reversing the referendum, and making us lose our nerve and rejoin the European Union. If it undermines the UK’s ability to walk away, the amendment makes that outcome more likely. That is the paradox. Trying to head off no deal—and this, too, is important to the hon. Lady—is actually making no deal more likely, and that is what we are trying to avoid.

European Union (Withdrawal) Bill

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 12th June 2018 Commons Chamber

[Mr Davis]

My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.

The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am rather sorry that my right hon. Friend is so distrustful of judges on what are essentially procedural or constitutional matters, but could he define “appropriate” to me? It is one of those vague words that I suspect means “if the Minister feels that he or she wants to, one way or the other”. A decision could almost certainly not be challenged by judicial review, because the word is so wide and vague that there is no conceivable argument that could be raised to challenge the Minister’s opinion. We cannot take powers in that way meaning that the Government are able to legislate on matters that will be important to some individuals entirely at a Minister’s uncontrolled discretion.

[Mr Davis]

I hear my right hon. and learned Friend—and old friend, because we are still capable of having a dinner for two hours and not talking about Europe throughout it; in fact he paid, and it was lunch.

The simple fact is that we are not just leaving this to a single word. As I said earlier, the House of Lords Constitution Committee looked at the matter, in the context of this Bill and the sanctions Bill, and said that we should require the Minister to give “good reasons”—that was the test—which is what we have proposed in our amendment.

EU Exit Negotiations

Debate between Lord Clarke of Nottingham and David Davis

Monday 13th November 2017 Commons Chamber

[Mr Davis]

Yet more carping from the right hon. and learned Gentleman. He complains that the negotiations are not making as much progress as he would like, yet he allowed his Labour MEPs to vote against progress this time around. The question he needs to ask himself is, what would he be prepared to sacrifice in order to buy the good will of the European Commission? We are standing up for UK citizens being able to move around Europe, to use their professional qualifications, to vote in municipal elections. Is he seriously proposing that we let them down in the interests of suddenly rushing ahead? We are standing up for British taxpayers and not wasting their money, with a clear position that we will meet our financial commitments but only once we know more about our future relationship. Would he sell them out? We are using Brexit to restore the sovereignty of the British courts—would he let that go, too? Yes, he would, because he would give the European Court of Justice the right to dictate our laws in perpetuity.

Let me come back to the right hon. and learned Gentleman’s description; he says the second half of the statement does not arise from the negotiations. Well, yes it does, because one of the reasons for the Bill I have announced today is to provide European citizens with primary legislation that will put into British law the withdrawal agreement in toto. So this is as near as we can come to direct effect; it comes directly out of the negotiation. I hope that the next time I come to report to this House, we will get a little more support from the Labour party.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

We will be debating tomorrow, I believe, a rather unhelpful new clause, first announced in The Daily Telegraph, which bears on the timing of all these processes. May I get my right hon. Friend to set out the Government’s intentions on these final processes and the role of Parliament? Can he give me a reassurance that Parliament will have a legally binding, meaningful vote, in which it will approve or disapprove of any final agreement, or lack of agreement, before we leave the European Union? Will he assure me that there will be time, in whatever circumstances, for the necessary legislation to be introduced, debated and passed, to implement in law, smoothly and properly, whatever it is Parliament has approved once the Government have made their proposals?

[Mr Davis]

I thank my right hon. and learned Friend for that question. First, yes, we will have a meaningful vote, as has been said from this Dispatch Box any number of times. What I have been saying today is that we are going to add to that, over and above the meaningful vote on the outcome—on the deal—legislation which puts it into effect. In other words, the House will be able to go through it line by line and agree it line by line.

EU Exit Negotiations

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 5th September 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The Secretary of State will recall that during the referendum campaign the prominent leaders of the leave campaign who dominated the media refuted any suggestion that our future trading relationships with Europe would be affected in any way. The present Foreign Secretary put great weight on the fact that the Germans need to sell us their Mercedes and that the Italians need to sell us their prosecco. Now that we are modifying our trade agreement, does the Secretary of State accept that in the modern world any trade agreement with the EU, the US, Japan or anybody else involves some pooling of sovereignty, some mutual recognition or harmonisation of regulations, some defining and easing of customs barriers and some easing of tariffs, and that they always take years to negotiate or to modify?

Will the Secretary of State therefore demonstrate the imagination and flexibility that he has been demonstrating so far and actually accept that we should remain members of the existing single market and the customs union during the interim transitional period, which will be necessary before we have our new relationship? That will greatly ease his progress in opening up the hundreds of other issues that he will have to start negotiating in a moment and will certainly ease the great uncertainty in British business that is threatening to cause so much damage to our economy at the moment.

[Mr Davis]

As ever, my right hon. and learned Friend—

Debate on the Address

Debate between Lord Clarke of Nottingham and David Davis

Wednesday 21st June 2017 Commons Chamber

[Mr Clarke]

I agree entirely with my right hon. Friend. We live in a celebrity culture where the referendum was essentially the Boris and Dave show, with very little serious content. The general election had a lot of slogans, and billions of pounds were going to be spent on everything that emerged as a problem, but it was remarkably bereft of policy discussion in the media—that approach is seen not just in Parliament—and in debate. That is a wider issue: in the politics of Nottinghamshire we try to keep up standards, but in the House we need to return to treating these things seriously.

Briefly, because I have taken far longer than I intended, we have to approach this on a cross-party basis. Both the major parties are hopelessly split on the issue. We have just demonstrated that, and the Labour party is equally split. The idea that we will continue in power by getting my right hon. Friends and me to agree on some compromise, subject to a veto on every significant vote to be exercised by the Democratic Unionists, which will give us a small majority in the House, is not the way to have a strong mandate for the Brexit negotiations that my right hon. Friend the Prime Minister was seeking in the election.

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

rose—

[Mr Clarke]

As I wish my right hon. Friend to have a strong mandate, I will break with what I just said and, for the last time, give way.

[Mr Davis]

I want to take my right hon. and learned Friend back to his comments on migration. He described the referendum as the Boris and Dave show. It certainly was not the Ken and David show. Neither of us spoke much about immigration in the referendum campaign, but the simple truth is that if we look back over the 20 years since the growth in migration from the east—the then Labour Government did not have a transitional arrangement—the concern of the public at large, not just small groups or people who are bigots, about migration generally went from next to nothing to 80%. It is a little wider, I think, than he has described. There are real problems and issues that require us to behave in a civilised manner, but I think that we should treat that respectfully. We are trying to get a resolution that respects that and delivers an economic outcome that we deserve.

[Mr Clarke]

I agree with my right hon. Friend. I always credit him with consistently sound principles. I have the same respect for him that I have for the two right hon. Friends who have interrupted me. [Interruption.] No—I mean that genuinely, as they have not been on all sides at various times. They have argued consistently, in a principled way, with knowledge of the European Union all the way through. There is always an element in politics—we have to have this—where some people change, quite rapidly sometimes, according to the latest headline or the prospect of promotion or whatever it might be. My right hon. Friend the Secretary of State for Exiting the European Union cannot be accused of that, and neither can I. I credit him, too, for not using any of the daft arguments during the referendum. I do not remember him saying that 70 million Turks were coming to molest our womenfolk and take our jobs. He did not say that there would be £350 million a week to spend on the national health service—the two big arguments of the national leaders—and I did not use the daft ones on our side either. The result was that we hardly got reported—nobody took any notice, because the national media were not remotely interested.

It is obvious that we are going to have to have some cross-party appeal now, and there are important reasons for that. The Labour party will be tempted by another election. So many Labour Members I know are still pinching themselves at the fact that they are still in the House. I quite accept that the Leader of the Opposition had a personal triumph, but I point out that Labour is still miles from forming a Government. It has 50 fewer seats than the Conservative party, and its chances of forming a coalition with the Democratic Unionist party, the Liberals or the Scottish Nationalist party on the kind of platform it stood on are absolutely nil.

I also think that another general election would be an appalling risk. The public do not like any party. I have never known such—ill-founded, I think—adolescent cynicism to be so widespread among the electorate, who treat the political class with growing contempt. Are we going to start playing party games and have another election when they are so volatile? About 20% of the population changed their minds in the last fortnight of the campaign. It was not with deep conviction: most of them were reassured that they could cast a protest vote for the Labour party without any risk of its winning and taking power. Another election would be a bigger gamble than the last one, with no certain outcome.

We in this House have to prove that occasionally our tribalism can subside and that we are capable of putting the national interest above the short-term knockabout of discredited party politics. The French have been saved by President Macron. They have got rid of both their long-established parties—they cannot stand either of them. A new, hopeful person has emerged from the centre or centre-left. Heaven knows whether he can succeed, although I very much hope that he does. We went in the opposite direction. The two parties surged in support—the electorate went back to the old two parties, but I do not think that they were deeply convinced by the arguments that either was using during the election. Heaven knows what they would do if this Parliament failed or collapsed or some stupid party vote took place and there was another general election. That would be a lottery from which we might all lose.

Let us show that we can rise above things. I am glad to know that channels are already open to the Liberals and the Labour party—as well as the Scottish nationalist party, I am sure. We do not really know the basis on which we are negotiating Brexit at the moment; I think it will have to be carried by what I think would be an extremely sensible cross-party majority that the House could easily command if we were able to put in place some processes to achieve it.

Article 50

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 24th January 2017 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Has my right hon. Friend had the opportunity to note that my recently published memoirs are cited with approval in paragraph 195 of the judgment? Does he share my surprise that that is a minority dissenting judgment?

More seriously, does my right hon. Friend accept that parliamentary sovereignty has always meant that Governments of the day pursue broad policy objectives in the national interest and quite willingly submit them to the judgment of the House, through both debates and votes, and that they proceed with broad policy objectives only when they have the support of a majority in the House of Commons? Will he give me the Government’s assurance that the Bill will be drafted on the basis that it improves opportunities for Parliament to give or withhold its consent to major policy objectives and that the Government will pursue that approach in future years? Having one vote right at the end of the process, when the House will be told that it either takes the deal that the Government have or goes into the alternative chaos of having no agreements with the EU or anybody else, is not a good substitute for the normal tradition of Parliament consenting to the policy aims of the Government of the day.

[Mr Davis]

My right hon. and learned Friend and I have been skirmishing over this issue for, I think, some 30 years, always with good humour, and I hope to respond to him in the same vein today. He repeated on television earlier today that characterisation of what the Government are proposing, so let us look at it. As I said, we have already had 10 debates and vast numbers of other arguments, but this is what is going to happen: first, we will have a Bill to authorise the triggering of article 50; then we will have a great repeal Bill whereby we go through the entire corpus of European law as it applies to the United Kingdom, which I should think will go on for a considerable amount of time; and then we will have primary legislation on major policy changes and secondary legislation, all put before both Houses. There will not be just one vote. At the end of the process, we will have the vote that eventually decides whether or not the House supports the policy we propose. Let me make it plain: that policy will be aimed solely at advancing the interest of the United Kingdom—getting the best possible negotiated outcome that we can achieve, having taken on board the informing debate of this House of Commons throughout the entire two years running up to it.

New Partnership with the EU

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 17th January 2017 Commons Chamber

[Mr Davis]

Of course we will do that; the hon. Lady is entirely right. We are constrained by a thing called the duty of sincere co-operation, which requires us not to do things that jeopardise actions by the European Union, so if the European Union currently has a trade deal in negotiation, we have to be very careful about how we impact on that. Of course we cannot actually sign anything until the day we leave, but I have a very strong suspicion that there will be a lot of things ready to sign on the very next day.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I apologise, Mr Speaker, for being unavoidably rather late in the Chamber. While I welcome the tone of the Prime Minister’s statement today and the commitments to free trade, internationalism and so on, which are very welcome, does my right hon. Friend agree that when he is negotiating free trade agreements or customs unions with any other country or group of countries, the parties both agree to be bound by sets of rules which neither of them is going to change? Any agreement involves submitting to some means of resolution of disputes, be it arbitration, a court of law, or the World Trade Organisation rules. What I do not understand when reading the Prime Minister’s statement or listening to my right hon. Friend is which country in the world is going to enter into a trade agreement with this country on the basis that the rules are entirely what the British say they are going to be on any particular day and that if there is any dispute about the rules, it is going to be sorted out by the British Government. [Hon. Members: “More!”]

[Mr Davis]

Opposition Members have a very short memory. I can forgive my right hon. and learned Friend because he did not hear the very first question, which was on exactly this point. I answered it in the same way that I am going to answer this one, which is to say that of course there will be agreements between us and they will be arbitrated by an organisation that we agree between us—not normally the European Court of Justice.

The Government's Plan for Brexit

Debate between Lord Clarke of Nottingham and David Davis

Wednesday 7th December 2016 Commons Chamber

[Mr Davis]

The right hon. Gentleman is exactly right. I agree with him entirely.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

rose—

[Mr Davis]

To balance up affairs, I will give way to the Father of the House.

[Mr Clarke]

Quite apart from the legalities of the situation, we have to address the political question of the Government’s accountability to this House for their important policies. This word “plan” is being used in an extremely vague way, and could cover some of the vague assertions that Ministers have been making for the last few weeks. Will the Secretary of State accept that the House requires a description—published in a White Paper, preferably—of the strategic objectives that the Government will pursue and that the Government should submit that strategy to a vote of the House? Once it has the House’s approval, they can move to invoke article 50.

[Mr Davis]

My right hon. and learned Friend is at least straightforward in what he says; he does not really agree with the outcome of the referendum. My view on this—I agree with him to some extent—is very clear. He has said that the word “plan” is vague; I think that what I have said already to this House, in terms of giving all possible information, subject to it not undermining negotiations, is actually more comprehensive. But it is not that we are not going to allow the House votes. First, we cannot do that as a Government, even if we wanted to. Secondly, as I have said, there will be a considerable amount of legislation during the negotiation, which will, in some respects, confine us.

Exiting the European Union

Debate between Lord Clarke of Nottingham and David Davis

Monday 5th September 2016 Commons Chamber

[Mr Davis]

I am tempted to say “Is that it?” too. The simple truth is this. The hon. Gentleman talks about a 670-page White Paper for the Scottish independence referendum, which I remind him they lost—and they would still lose today. After the Brexit referendum, what did we see? Do the Scottish people want another referendum? No, they do not. Would they vote to leave? No, they would not. That is all I need to say to the hon. Gentleman.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I understand my right hon. Friend’s difficulties, and I congratulate him on not rushing anything. I encourage him and his colleagues to take as long as they possibly can to work out a policy. I look forward to hearing from him again when the Government have found something they can agree on that indicates what Brexit actually means. Meanwhile, on a more positive note, I do not recall my right hon. Friend taking part in any of the ill-informed and sometimes prejudiced attacks on immigrants and foreigners living and working in this country. Does he agree with me that, although some anti-foreigner rhetoric might have added a few votes that might have tilted the leave campaign into gaining a majority, the majority of the public are not hostile to other Europeans living and working in this country, so long as they respect our laws and our customs? Will he confirm that the Government will not needlessly sacrifice our access to a free market of 500 million people or our trade and economic co-operation with our European allies just to demonstrate that we are turning away from this country foreigners whom employers wish to employ to fill skills shortages or as a result of the unwillingness of English people to fill vacancies in various parts of our economy?

[Mr Davis]

My right hon. and learned Friend and I have debated this matter probably for nearly 30 years. Let me say this on the issue of anti-foreigner rhetoric. I agree entirely that the sort of unpleasantness that has sometimes arisen is to be wholly condemned—I repeat, wholly condemned. I certainly join my right hon. and learned Friend in condemning that rhetoric.

However, my right hon. and learned Friend then moved on to the issue of immigration. I do not think that when people are concerned about immigration, it is necessarily xenophobia. Economic, social and other pressures lead to people’s concern about the issue. Nor do I think that it is a simple trade-off. I do not think that an immigration control system that suits our country is necessarily one that will preclude a good trade relationship with the European Union. Trade relationships are beneficial to both sides, and we should not need to make a policy purchase in order to secure such a relationship. So, while I agree with my right hon. and learned Friend’s original proposal, I do not agree with his conclusion.

Report of the Iraq Inquiry

Debate between Lord Clarke of Nottingham and David Davis

Wednesday 13th July 2016 Commons Chamber

[Mr Clarke]

Mr Speaker, I have already spent more time than I intended to on Tony Blair. Members who wish to argue about the French veto in 2003 can do so between themselves.

The political background to what was being decided and what the politicians wanted to do was key. I was a Back-Bench Opposition Member at the time, but I followed the events with some care. I had one advantage: I did not have access to what was going on inside the Government, but I knew a lot of American, as well as British, politicians. At various political gatherings—Bilderberg, Davos and so on—I knew and was on friendly terms with quite a few of the key American neo-cons. I was arguing against the merits of the invasion of Iraq before the debate ever even started here.

That is important background. In the Bush Administration, the key policy makers wanted to invade Iraq immediately after 9/11. By 2001, there was not the slightest doubt but that they would invade. They had a rather naive, idealistic approach that faintly shocked me: they thought the previous Administration had not used American military power for all the benefits it could produce in the world, but they were going to use it for good, and they thought they would be treated as liberating heroes when they arrived in Baghdad and set up a better regime.

They thought that a man called Chalabi would win the election held thereafter. I met Chalabi once or twice. He once got about 2% in an Iraqi election. They thought he would be in charge but that he would need supervision, so there was going to be a US general—constant comparisons were made with General MacArthur turning Imperial Japan into a democracy after the war. Much was also made of the importance of denazification following Hitler’s fall, hence there was going to be de-Ba’athification in Iraq to get rid of all these people in the army and the security services and so on. The House will be reassured to know that I fiercely disagreed. I liked these people, but my thought, during such a discussion, was always, “One of us isn’t on the same planet.” I formed a fairly hostile view, therefore, long before it arrived here.

If I knew in 2001 that the Bush Administration was going to invade Iraq, I am quite certain that Tony Blair and the British military knew, and that they had a long time to work out how they were going to join in. That explains a lot. Why did the Americans want the British to join in? They did not need us for military purposes. They could defeat the Iraqis without our military assistance. They did not rate our military that highly—although they thought our special forces and intelligences were very good—but we were a very valuable political ally. They thought that the presentation would be greatly improved if the British, of all people, were at the heart of the alliance, and as I have said, Tony Blair was very keen to join them. I doubt he bought all the neo-con theories, but he clearly thought that getting rid of Saddam Hussein’s regime was one of the best contributions he could make to the future of the Iraqi people and he was determined to join in.

Reading these mysteries, one must ask, “What was the snag for Tony Blair and the Government?” I am confident I knew enough, through my contacts, to know that the snag for Tony Blair, who wanted to take part and who—it seems—had already told George W. Bush that he wanted to take part, was that it was not legal for the UK to take part in a war being launched for the purpose of changing the regime in another country. When he received that advice, with which I think every lawyer in the place agreed, it was undoubtedly right.

As somebody said, however, that was not the view the Americans took. American neo-cons are not so impressed with international law. Their constitution does not constrain them. I once had a key American official tell me, “We have all the legal authority we need to invade: we have a large majority in both Houses of Congress.” And that was it. But they were so keen to have the British that they were prepared to give Tony Blair some time to tackle this problem of whether it was lawful for him to take part, and to work out a basis upon which the British could join.

At this point, I think, these people’s motives were virtuous. They believed all this. They were making the world a better place by removing a tyrant and installing a pro-American, pro-western, pro-Israeli, democratic Government in a liberal society. They were going to change the regime, and we were going to do it lawfully, so we had to turn to the question of the dreadful weapons that Saddam Hussein undoubtedly had used against his own people years before, and whether they had all been disposed of or whether we could demonstrate that he was a continuing threat. If we could demonstrate that he had weapons of mass destruction, that they were a threat to British interests and our neighbours, and that he was not co-operating with weapons inspections and so on, and if we could get a UN resolution, then we had a legal basis for invading.

Once one realises that that was the—perfectly worthy and well-intentioned—mindset of most of the British people taking part in the process to intervene, one can understand why some of these extraordinary processes happened. I personally believe that the American Administration delayed the invasion for a month or few—

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

Two months.

[Mr Clarke]

Two months, says my right hon. Friend. They delayed the invasion to give the British more time to get through this convoluted legal stuff—I use sarcastic words of the kind the occasional impatient American used at the time—before they could join in. The problem was that the Americans, although they went to the UN and got resolution 1441 and all the rest of it, began to lose patience, seeing that this could go on forever, and it reached the stage where they were going to invade in March 2003. They could not wait any longer. The Blair Government—those who knew what was going on—had to speed the thing up a bit, realising that if they were not careful, they would fail to get there in time.

One thing that surprises me in the Chilcot report concerns the advice the Government got from the Joint Intelligence Committee, which eventually produced enough intelligence that was plausible and no doubt believed by those putting it in the reports for the Attorney General to be persuaded—obviously quite reluctantly—that there probably was a basis for going ahead. The urgent debates then took place in this House, the last one being about two days before the date when everyone knew the troops, already in battle positions in the middle east, were about to go ahead with the operation.

We should learn the political lessons from all that. One of the first lessons relates to the ever-increasing rush to get into the position of being able to invade lawfully, so that everybody wanted to be persuaded that various things were correct and that various steps had been taken. If they had submitted themselves to slower, more challenged and more careful consideration, however, it would have led to a different conclusion.

What, then, is the outline of the main political lessons to be learned from all this? First, the American alliance should not be entered into blindly. Let me say briefly that I am as passionate a believer as Tony Blair that our alliance with the United States is crucial to this country’s future security and role in the world. There is not a trace of anti-Americanism in what I am saying; our alliance is one of the most valuable features of our foreign policy. That does not mean, however, that we should allow ourselves to go along blindly and always—right or wrong—with what the American President of the day wishes to do. I take that no further, but we might have a President Trump, so it is a question worth bearing in mind. I agree with the hon. Member for Islington South and Finsbury (Emily Thornberry) that the American alliance will not be destroyed—it might be damaged for a month or two—if we do not absolutely go along with what the American President wants us to do.

Let me move on to something that is clear in Chilcot—though I have not made the point much myself—and was plain to see in how the Ministry of Defence behaved at the time. The advice of our defence chiefs is hugely important, and I share the support for and pride in them that keeps being expressed in these debates. Yet—subconsciously, I am sure—they always want to take part in any military activity that the Americans want them to join. It might be considered advice, but it always comes down to “We must ask the Americans to let us make as big a contribution as we can”. A trained military man is trained for the purpose of using military force in the national interest and further worthwhile objectives, and cannot help thinking, “This is our moment; this is the great action in which we must take part.”

It is the same with the intelligence services. They prize their relationship with the Americans above all other relationships they have with the outside world. They are dependent on co-operation in some ways, but they are anxious to please and to do what they think their American colleagues wish them to do. In this particular case, we had a Prime Minister and a Government who wanted to enter the war, so everybody was extremely anxious to find the facts, to be convinced of the situation and to enable the Prime Minister to go ahead and do what he wanted. That is an essential point, but it requires a simple politician like me to make it; it does not appear in the pages of the Chilcot report. When one is raising one’s eyebrows at what happened, I think that that answers a lot.

Particularly at the time we are talking about—and sometimes still today—there were not enough diplomats involved. There was not enough looking at the expertise of the Foreign Office. We had a lot of Arabists. The Americans had some, but they got rid of most of theirs and brought people in who had been involved in the Nicaraguan episode because they were seen as being ideologically more sound. Americans did not like the Arabists we had in the Foreign Office because they kept complicating things by talking about tribes and different sorts of Muslim, which the policy makers in Washington thought were irrelevant to the new era of western democracy in which they thought they were going to take the country.

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

It is a privilege to follow the right hon. Member for Derby South (Margaret Beckett), although I felt that at the end she destroyed her own argument by attributing to other people views that nobody holds: that somehow IS is allowed off the hook of blame because of the weaknesses and failures of the British Government.

Let us be clear what those failures are: 150,000 deaths by violence, a large majority of them innocent civilians; over 1 million deaths, on medical estimates, as a result of this war; and a destroyed country. Iraq was a nasty dictatorship, but containment—sanctions, inspections when they were allowed, and no-fly zones—was broadly working. There was damage to the stability of the middle east. Of course it is not the entire story, but let us not forget that IS started in an American prisoner-of-war camp in Iraq. That is where its high command comes from, so let us not put that to one side either. There has been a significantly increased terrorist threat worldwide, something that was known and warned about before we took this action. That is what we are talking about. That is what the worst foreign policy mistake in our modern history means for many, many innocent people in the world.

In the 1990s, before that happened, I had responsibility for counter-proliferation in the Conservative Government of the time. I accept that the behaviour of the Saddam Hussein regime was peculiar to say the least. As far as we could tell from inspections and our intelligence, it did not have WMD or a workable WMD programme but was deliberately trying to create confusion about that, by not co-operating from time to time, by moving trucks from one site to another before inspectors arrived, and so on. It was probably doing that to keep Iran convinced that it had a WMD programme. That was what it was worried about—not us, but its next-door neighbour against which it had fought a massive war shortly before. That explains some of the strange behaviour of the regime.

At that time and—I guess—up until just before 2001, the general belief was that this was a moderate and controllable threat. Indeed, Carne Ross, the middle east specialist among our delegation to the UN, said that when he first took the job he was briefed:

“Basically we don’t think there’s anything there. We are justifying sanctions on the basis that Iraq has not answered questions about its past stocks”.

Since then, all the JIC, SIS and GCHQ reports have corroborated that. It was considered a moderate and controllable threat at that point.

Then what happened? We had 9/11, which, quite properly, shocked the world: 3,000 deaths in a hideous terrorist spectacular. Of course, Tony Blair justifies his actions on that basis, but I have to say to him that this was a reason for getting it right, not an excuse for getting it wrong. There was understandable paranoia that something like it might happen again, either here or somewhere else, but then there came a dangerous and simplistic conflation of the real, present and continuing threat from al-Qaeda and Iraq—the axis of evil nonsense that President Bush generated at the time. This fiction was reinforced in February 2002, when the Americans rendered to Egypt somebody called Sheikh al-Libi, who was tortured on the question of whether there was a chemical and biological weapons relationship between Iraq and al-Qaeda. Essentially, he was tortured until he said yes, and that was the evidence that Colin Powell cited at the United Nations—the House might remember—when he talked about having “substantial evidence”. Of course, it was a fiction obtained under torture.

I am quite sure that that intelligence was shared with Mr Blair, who, not knowing the source, would have found it persuasive, as something told to the Americans by an al-Qaeda commander. It seems from the Chilcot report that, at some point between December 2001 and possibly March 2002 but certainly by July 2002, Mr Blair effectively signed Britain up to the American military effort. As my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) said, the issue was not our soldiers but our reputation. It was our involvement that legitimised the American action.

This, however, produced a problem for our Prime Minister. Under American law, to go to war on the basis of regime change is entirely legal. They do not recognise the international laws that render it otherwise, so for them regime change is a perfectly legitimate casus belli. From comments made and the items to which the right hon. Member for Gordon (Alex Salmond) referred, it seems that Tony Blair agreed, but he had a problem, because our law and international law did not allow it. He therefore saw his role as building a coalition to support the Americans.

There was nothing dishonourable in that, if Tony Blair believed the aim, but to do it he had to achieve a number of things. He had to create a casus belli under international law, and for that he needed proof of weapons of mass destruction and of a terrorist threat, and a UN resolution and thereby proof of legality. The result was UN resolution 1441, the thrust of which was that it was the final opportunity for Iraq to comply with its disarmament obligations. The vote was 15:0 in favour. As the right hon. Member for Derby South said, it did not include a deliberate trigger to war; it required a further resolution. The UN inspectorate went in and did 700 inspections of over 500 sites. Interestingly, it went to three dozen sites given to it by the CIA and MI6, who thought that was where the weapons were located. The inspectorate found not a thing—over three and a half months, it found nothing whatsoever.

Then the American President set a timetable, creating a real problem over and above the United Nations—war by March. That is why Chilcot said that going to war was not the last resort. It was not. It gave Mr Blair a problem. What should he do? Many other countries, including France and Russia, viewed the inspection process as incomplete—and, of course, it was. The UN vote was then lost by 11 to four, so when Blair returned to the UK, he had to win a debate and vote in the House of Commons. He made what some people think was the greatest speech of his life, but in order to persuade us, he had to say five things that were a clear misrepresentation.

Mr Blair accused France of saying that it would never vote for war. That was simply not true, and he knew it was not true. I refer to an interview given on Radio 4 in the last year by Sir Stephen Wall. As a Foreign Office adviser in No. 10, he was privy to what was going on and clarified what was really said, which was that, effectively, “As of now, France will vote against”. When he was asked whether Downing Street deliberately lied about Chirac’s statement, he said yes, it deliberately lied.

The next two misrepresentations were quotations from the UN inspectors’ reports. Time is short, so let me read briefly what was said by Hans Blix, the head of the inspectorate. Speaking of the British Government, he said:

“If they had gone to the British Parliament in 2003 and said that we have a lot of things unaccounted for here, and we suspect there may be something, and we think it is safer to invade them, would the British Parliament have dreamt of saying yes to such a thing? I don’t think so. I think in order to go ahead they needed to make the allegations which they made and which were not sustainable…In substance yes they misrepresented what we did and they did so in order to get the authorisation they shouldn’t have had.”

That was Hans Blix’s view of what Tony Blair did in the House of Commons. Mr Blair also misrepresented what Hussein Kamel, Saddam Hussein’s son-in-law, had told the allies about the WMD programme.

[Mr Kenneth Clarke]

Will my right hon. Friend give way?

[Mr Davis]

I do not have time. Oh, I will give way.

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[Mr Clarke]

I had it in mind that my right hon. Friend would get a bit more time.

Does my right hon. Friend think, with hindsight, that given that Hans Blix was perfectly willing to carry on with inspections, if the Americans could have been persuaded to delay for another month, all this could have been avoided? The Americans dismissed Blix, however, and regarded him as a waste of time; they were trying to get him out of the way.

[Mr Davis]

That is exactly right. That should have been the stance that Mr Blair took, but he did not. He chose instead to come to Parliament to misrepresent the case.

Mr Blair also misrepresented the line put forward by Mr Hussein Kamel, who was later killed by Saddam Hussein, to claim that the WMD programme was continuing. What was, in fact, said in an interview with the inspectorate, was that the WMD had all been destroyed by 1991.

Finally, Mr Blair was asked by Tam Dalyell about the risks of terrorism arising from the war, but the Prime Minister did not give him an answer—despite having been told by the JIC and by MI5 that it would increase both the international and domestic risk of terrorism and would destabilise the states in the area.

On five counts, then, Mr Blair misrepresented to this House the substantive aspects of the argument for the war. If this House is to contribute to decisions on war in the future, it must be able to rely on being told the truth, the whole truth and nothing but the truth by our Prime Minister.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and David Davis

Monday 4th March 2013 Commons Chamber

[Mr Davis]

The hon. Lady is of course right, but let me come to the point that I was driving towards, which is that none of the systems that we are talking about is perfect. PII clearly has weaknesses. Everyone who has spoken has said something to that effect, and the hon. Lady was particularly correct about that; there are weaknesses to PII. We should not accept that that is the perfect outcome either.

[Mr Kenneth Clarke]

My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.

Justice and Security Bill [Lords]

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 18th December 2012 Commons Chamber

[Mr Clarke]

I entirely agree. We keep being reminded of that. The fact is that the reputational damage is probably more significant than the millions of pounds that have been involved in some of these cases, and we need to ensure that some way can be found of trying them.

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

Will my right hon. and learned Friend give way—on that point?

[Mr Clarke]

Let me just explain. All of this is relevant.

Some of our critics appear to be arguing decisively that the status quo is somehow defensible and should continue, but I believe that that position is untenable now. It is simply not possible for a judge to hear these matters, and, as was pointed out by the right hon. Member for Salford and Eccles (Hazel Blears), all kinds of insinuations are made about cases in which it ought to be obvious to everyone that the intelligence agencies were in no position to call any evidence that would seriously address the issues.

The serious evidence that might be called and might be relevant—I am not commenting on the merits of any individual cases—might relate to the precise nature of the British intelligence agencies’ involvement in the issues concerned. What did our agents know about either an individual or an organisation at the time when the events being described were taking place? What collaboration was taking place between the British Government and partners in overseas agencies, and what information was being shared? Those are all very sensible questions, given the nature of some of the claims that have been made about the behaviour of British agents.

As I have told the House before, I do not think that any country in the world would tolerate a legal system in which our spies and our agents and their collaborators cheerily appeared in open court, in front of the parties, their lawyers and the press, and gave evidence on these matters. It would be exceedingly damaging. Public interest immunity, on which people now rely, has one obvious defect. If a Minister obtains it, that means that the material is entirely excluded from the court, and neither party can rely on it.

What continually happens, certainly in relation to defence evidence, is that—although there has been no proper hearing of all the evidence—the parties settle, the taxpayer pays up, claims are made which are damaging to the reputation of the service and no one knows whether or not they are justified, and we have to move on from there. I want us to reach a point at which cases are not being settled simply because our court procedures are not capable of allowing sensitive national security material to be heard in the few cases in which it is plainly relevant. It has always been obvious to me that what is needed in civil actions of this kind is the very limited use, in exceptional cases, of the closed procedures that were created by the last Government, which would enable a High Court judge to consider all the evidence from both sides, but to do so in necessarily closed conditions if national security was at risk.

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[Mr Clarke]

Of course it is being appealed, but that does not alter my point. Depending on which side one is on, it is no good saying that we cannot have closed material procedures if the wrong side is going to win. In that case, the Government lost and Abu Qatada won using a special advocate and a closed material procedure.

[Mr David Davis]

On exactly that point, my right hon. and learned Friend—and he is my friend—said that these proceedings were created under the Labour Government. They were, and there are now 69 special advocates, 32 of whom are experienced in closed material procedures. The vast majority of them—nearly all of them—oppose the Bill as they think PII works better than the procedure they have been operating for the past few years. Why does he think that is?

[Mr Clarke]

The special advocates surprised me with the ferocity of the evidence they provided. They start from the side of the argument that challenges the security services and is suspicious of what goes on, and judges have told me—some have said this publicly—that they underrate their effectiveness in such actions. They are used to practising the present law and I assume that their position is that the present law is perfectly all right and that they wish to continue with it. I am surprised by the adherence to PII, which has not hitherto been evident.

Let me give the example of another case to show that special advocates can successfully challenge the evidence put forward in closed proceedings by claimants. Ekaterina Zatuliveter, the Russian girlfriend of a Liberal Democrat Member of Parliament, won her deportation case after a closed hearing in which a special advocate challenged the argument that she was a threat to national security and should be deported. It is simply not the case that in closed procedures it is impossible to challenge these points. Such cases are comparatively new, as no one dreamed we would have such litigation until 10 or 15 years ago.

The claims are getting steadily more numerous as we have an attractive jurisdiction in which the person against whom one makes allegations will probably not be able to call any evidence and one will be paid millions of pounds. The best way forward is the one that has been successfully used in the two cases I have already cited, which is, despite our very limited experience, having closed proceedings and special advocates. It is less than ideal, but it is justice, not secrecy. Secrecy is what we have at the moment, with an uncertain and debatable outcome in all these cases.

Oral Answers to Questions

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 3rd July 2012 Commons Chamber

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

On 4 September, the European Court of Human Rights will hear the case of Nadia Eweida v. the United Kingdom Government. I understand that the Government are resisting the case. Miss Eweida is the lady who effectively lost her job with British Airways for wearing a cross, a symbol of her religion, at work. Is it any part of the British Government’s policy to support the denial of people’s religious rights at work? If not, will we reconsider our position on that case?

[Mr Kenneth Clarke]

I will consult the Attorney-General, who is no doubt preparing the Government’s defence in this case. This is obviously a hugely difficult issue; the case has gone through the courts here and is now going to be heard in Strasbourg. Whatever one’s feelings about the narrow facts of the individual case, there are wider issues about the enforcement of religious rights in employment, and I have no doubt that they will be properly canvassed. I will consult my right hon. and learned Friend the Attorney-General.

Defamation Bill

Debate between Lord Clarke of Nottingham and David Davis

Tuesday 12th June 2012 Commons Chamber

[Mr Clarke]

I shall try to swivel in your direction more frequently, Mr Speaker. In case you missed it: if you ever have to bring a defamation action, it is unlikely to be heard before a jury. But I do apologise.

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

I, like my right hon. and learned Friend, am hoist with two petards: one is my belief in the principle of jury trial; the other is the practicalities that he quite rightly outlines. What I want to understand in his description of the Bill is under what circumstances a jury trial will be triggered. What are the criteria that will trigger a jury trial instead of a judge-only trial?

Justice and Security Green Paper

Debate between Lord Clarke of Nottingham and David Davis

Wednesday 19th October 2011 Commons Chamber

[Mr Clarke]

The right hon. Lady is also a member of the ISC, so I am grateful for her support for our proposals. She is quite right to stress the need for public confidence generally. The present situation is wholly unsatisfactory. The Guantanamo Bay case, which we settled recently, showed exactly what can go wrong. I had to come to the House to announce that we had paid out a total of £20 million, together with costs, because we had ceased to defend the action. Everyone who was inclined to believe the detainees thought that there was secret information that would confirm everything they said, and everyone who was against the detainees thought that the security services had been crippled, that they could have defended themselves and that we were paying money to worthless people. Every conspiracy theory could flourish, depending on temperament, before we even started. That is no way to retain public confidence. In our view that definitely requires closed material procedures, which means that we must have special advocates, so we welcome views on how to improve the way in which they carry out that very difficult task.

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

The purpose of state secrecy is to protect the safety of citizens, not to cover up criminality or to avoid embarrassment. In the Binyam Mohamed case, which led to the Gibson inquiry, the very senior judges involved went to a great deal of trouble to balance the requirements of security and open justice, but, from what I understand of this Green Paper, I am concerned that had my right hon. and learned Friend’s proposals been in place a few years ago, what we learned from the Binyam Mohamed case would not have been put in the public domain, that we would not have had the Gibson inquiry and, indeed, that we would not have been able to resolve the issues arising from it. Other nations—Canada, Australia, Germany, France and Italy; all our major allies other than America—are able to be very robust about that. Why can we not be?

[Mr Clarke]

If my right hon. Friend will excuse me, I shall not comment on the Binyam Mohamed case in detail. The judges take one view and others take another, but the Green Paper addresses the problem. One would need the facility for closed material procedures, so the starting point would be a decision, confirmed by the judge, that in the interest of national security the case should take place in closed proceedings and, therefore, not be revealed afterwards. That is an altogether better way of resolving the issue than allowing an argument to break out between judges, the Security Service and everybody else afterwards about whether something has been revealed that should not have been. That was where we were in the case of Binyam Mohamed.

I cannot remember my right hon. Friend’s second point, but we have got the balance right. Members of the Intelligence and Security Committee have said that confidentiality vis-à-vis allies is absolutely crucial, and it is no good currying favour by trying to get behind that, because in fact the safety of people in this country would be endangered if we did not have the full and frank co-operation of allied countries providing us with their intelligence, just as we provide them with ours.