Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Stella Creasy (Walthamstow) (Lab/Co-op)]

I agree with the hon. Member for Bromley and Chislehurst (Sir Robert Neill) when he said that this Bill has been improved by the work that has been done across the two Houses of Parliament and across the Benches. With that in mind, I will start by acknowledging the work that has been done on the issue around the use of children—the concept of juvenile CHIS. I acknowledge the work of Baroness Kidron, Lord Russell, Lord Young and Lord Kennedy who led the debates and discussions on these issues in the other place, and they have brought us to a much better place as a result. If we are honest, when this Bill first came to us, there was no discussion about children and what might happen if children were used as covert intelligence sources, so it is important that we recognise the work that they did to get us to this place, with the amendments before us.

I also put on record my thanks to the right hon. Member for Haltemprice and Howden (Mr Davis). I do not know whether that is helpful to him, but I know that he is speaking after me. Certainly, it might be of concern to our Whips that I agree with much of what he has said with regard to this Bill. We share the concern that it is important to have the right legislation in place for these issues, because we know that covert intelligence sources are already being used. In that sense, I also want to thank the Minister for Security for listening to our concerns and I wish him well in his recovery.

I also pay tribute to the work of Just for Kids Law and JUSTICE, which have been phenomenal champions of the young people we are talking about today. I also thank the Minister in the other place, Baroness Williams, for her work and the Solicitor General before us today, who has had to step into this debate. I hope that now that he has had time to look at this issue, he will reconsider what he said a couple of weeks ago when he suggested that some of our concerns and examples were not valid and could not have happened, not least because his colleague, Baroness Williams, has acknowledged that those very cases about vulnerable children aged 16 and 17 being exploited and then put at risk and used as covert intelligence sources were in fact real.

With that in mind, I agree very much with the shadow Minister that the Bill is much improved and that the Government have moved on this issue. We now have in the Bill the exceptional circumstances principle—that we should only ever ask children to put themselves in harm’s way and to commit criminal acts in very exceptional circumstances. Indeed, our argument that there should always be an appropriate adult as part of those conversations has certainly moved forward, as has our suggestion that IPCO should be overseeing this. Those are very welcome developments and it is important that we recognise that.

There is an understanding that we need to go further in recognising that appropriate adults are not always part of these conversations and the discrepancies that that creates. If a child is arrested for shoplifting at the age of 16 or 17, there will always be an appropriate adult involved in their conversations with the police, but if a child is asked at the age of 16 or 17 to spy on their parents or to commit a criminal act as part of an investigation there might not always be an appropriate adult. That reflects a bigger challenge that I hope the Minister will take up: that this legislation is obviously looking only at the use of criminal conduct authorisations, and yet what this debate has shown is that across the House and across the different sections of Parliament there is a concern about the use of children at all as covert intelligence sources. I make a plea to him today that the long-awaited code of practice be published—we were promised it during the passage of the Bill, but we have not yet seen it—and that we look at that much bigger concern about ensuring that there is always appropriate welfare and safeguarding protection for children of all ages, recognising that the United Nations and, indeed, this country have signed up to recognising children under the age of 18—so 16 and 17-year-olds—as children who require our protection. We need to extend the principles that we have put in this Bill regarding criminal activities to all their engagement.

I think that everyone recognises that our security services and the police do a phenomenal job and work in some very difficult circumstances. We also recognise our responsibility in this place to those young people that we ask, in these exceptional circumstances, to put themselves in the way of harm. The Bill certainly takes us much further towards having the protections in place that we would all wish, but we know that there is more work to do. I appeal to Ministers to continue to work with organisations such as Just for Kids Law, to listen to the concerns of not just the right hon. Member for Haltemprice and Howden but Members across the House about where we might cut across international standards and welfare protections, and to recognise that the best states are those that protect everyone, including those people that we put in harm’s way, whether they are in our secret services or they are young people.

Thank you very much, Madam Deputy Speaker, for allowing me to participate in this debate and support the hard work of our Members of Parliament on this issue.

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

I start by sending my wishes, with everyone else’s, to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). The House would perhaps like to know that I spoke to him this afternoon and he is making very good progress. We are all happy about that.

I also commend, in the strongest possible terms, the hon. Member for Walthamstow (Stella Creasy) for the campaign that she has put together, particularly with respect to the Bill as it applies to children. She has proved yet again a formidable campaigner, for which we should all be grateful.

I am still completely against the division between children above and below the age of 16 on whether there is an absolute requirement for an appropriate adult in meetings with the child. Of course, we all know 17-year-olds who are very mature, but we also all know 17-year-olds who are very immature, and in the context of being involved in a criminal investigation, I suspect the latter are far more common than the former. For that reason, I think it entirely wrong that a police officer or officers, no matter how responsible, should be allowed, even in exceptional circumstances, to make judgments about whether an appropriate adult should be present. That being said, the Bill has made significant movements in the right direction—just, I think, not far enough.

The SNP spokesman, the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald), raised the more general question of the extent of the sort of crime that CHISs could be approved to authorise. Since the Lords dropped the amendments that related to that, that ambiguity—namely, the sheer scope of crimes and whether they could include torture, murder and the like—still applies to the Bill.

That ambiguity arises because of the following. On the one hand, the Government have said that the Human Rights Act intervenes to limit what can be done. I quote Baroness Williams who said that the Human Rights Act provides

“limits to the conduct that can be authorised. An authorisation that is not compatible with the Human Rights Act will not be lawful”.—[Official Report, House of Lords, 9 February 2021; Vol. 810, c. 181.]

However, in the court case that precipitated the Bill, that of Privacy International v. the Home Secretary, on 7 May 2019 Mr James Eadie, the Government’s QC, said that

“the state, in tasking the CHIS…is not the instigator of that activity and cannot be treated as somehow responsible for it…it would be unreal to hold the state responsible.”

I have always viewed that as a rather Pontius Pilate statement on this matter by the Government’s lawyer.

That introduces an ambiguity. The Minister, who is an old friend of mine, will understand better than most the standing of what he says since the Pepper v. Hart case of some years ago—namely, that the courts will interpret ambiguous legislation in the light of the way the Minister describes it. I therefore ask him to confirm, in unequivocal terms, for Pepper v. Hart purposes, that authorisation of acts that would breach the Human Rights Act would always be unlawful. I will give way to him now or he can answer when he winds up; I really do not mind.

[The Solicitor General]

I will do it at the end.

[Mr Davis]

That is fine. I will say one last thing with respect to that. If the Government do not make it clear and that still hangs as an ambiguity around the Bill, then the Bill, along with the Overseas Operations (Service Personnel and Veterans) Bill, could well end up with this country being in the International Criminal Court for reasons that the House did not intend. It is that important that the Minister makes that clear.

Covert Human Intelligence Sources (Criminal Conduct) Bill

David Davis Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Wednesday 27th January 2021 Commons Chamber

[Dr Julian Lewis (New Forest East) (Con)]

On behalf of the Intelligence and Security Committee, I entirely endorse the tributes and good wishes paid by the Solicitor General and the hon. Member for St Helens North (Conor McGinn) to my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire). His professionalism, calmness and dedication as Security Minister and in other roles are a model for us all. We admire him greatly and wish him the best of health.

Despite extraordinary technical advances in surveillance and espionage methods, human sources in intelligence operations remain indispensable, especially in the counter-terrorist work of our Security Service. Going undercover to join terrorist groups or remaining in a terrorist group, having become disillusioned with its objectives, in order to frustrate them, calls for courage of the highest order. The Intelligence and Security Committee has been briefed by MI5 on specific instances of this, and we accept that, without the use of covert human intelligence sources, many of the attacks foiled in recent years would have succeeded in their horrific aims. That is what justifies the authorisation of specified criminal acts, on occasion, in order to maintain an agent’s cover and in proportion to the potential harm that he or she is working to prevent.

As pointed out on Second Reading on 5 October, the report on Northern Ireland-related terrorism compiled by our predecessor Committee and presented to Parliament that same day firmly concluded at paragraph 39:

“While there are, rightly, concerns that criminal activity may somehow be being legitimised, the need for such authorisations is clear. What is key is that authorisations are properly circumscribed, used only when necessary and proportionate, and subject to proper scrutiny.”

Precisely because covert human intelligence sources are so effective, ruthless terrorist organisations have no qualms in devising tests of the utmost depravity to flush out agents infiltrating their ranks. That is why the provisions of Lords amendment 2 to prohibit the granting of criminal conduct authorisations, or CCAs, are certain to be as counterproductive as they are well-intentioned.

What the amendment proposes, if enacted, would soon come to constitute a checklist of atrocities that could be used to expose undercover agents known to be forbidden from carrying them out. As sure as night follows day, it would also increase the number of such atrocities committed. In order to flush out MI5 agents by putting suspects to the test, paranoid extremists would resort to testing more and more of their group members, if they felt that their organisation was coming under pressure and suffering setbacks.

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

My right hon. Friend does great service to this House and the Committee. Given what he has just said, does he believe that these terrorists are unable to read the Human Rights Act?

[Dr Lewis]

I have the advantage of having been present when my right hon. Friend made that very point on Second Reading, and therefore I was entirely prepared for that intervention. I will give a response that is perhaps slightly unorthodox, despite the emphasis put on the Human Rights Act by my right hon. and learned Friend the Solicitor General.

In my previous role as Chair of the Defence Committee, it became more and more obvious that the Human Rights Act, and the European convention on human rights, had had serious, and perhaps largely unanticipated, adverse consequences for the operations of our military. I suspect that if applied too literally, they would have equally adverse effects on the operations of our security and intelligence services. As the years go by, and as experience shows, I fully expect that there will have to be amendments to the Human Rights Act. I believe that although terrorists could indeed read it, they would take rather more seriously a categoric list of forbidden offences in the Bill than they would the rather generalised content of the Human Rights Act. I do not expect my right hon. Friend to be wholly satisfied with that, but it is my honest opinion.

Consequently, terrorist groups whose operations might have been compromised by technical means, rather than by human infiltration, would be likely to ask their genuine members to commit more and more forbidden offences, simply to prove their loyalty. The outcome would inevitably be an increase in murders and other serious offences on their lordships’ list, which would not have happened but for the incorporation in statute of such a collection of prohibited crimes.

As I said earlier, the ISC has had a comprehensive briefing from MI5, explaining how those authorisations are used in practice. We are convinced that the Security Service uses them appropriately and proportionately. We are also reassured that the measures in the Bill legalise only what is specified in each criminal conduct authorisation. That means that any other criminal behaviour not covered by the terms of a CCA may be subject to prosecution—a safeguard that will hopefully encourage the House to reject Lords amendment 2. This is one of those occasions when it is necessary—really necessary—to keep our enemies guessing.

--- Later in debate ---

[Mr Jones]

It is, and there is another thing of which I would like to reassure the House, from a security point of view and from my position on the ISC. As I think I said on Second Reading, such decisions are not taken lightly by the security services. Senior officers authorise and control CHISs for good reasons. Do they have some difficult calls to make? Certainly, from one of the transcripts that I read, they do. Do they, on occasions, withdraw authorisation? Yes, if they think that the individual is doing something that is not justifiable or proportionate.

The other point is that we, and a lot of the Bill’s opponents, have concentrated on the security services, but remember that it will be used by the police and others.

[Mr David Davis]

As I was listening to the right hon. Gentleman’s very thoughtful speech, it occurred to me that it might be a mistake to have the same Bill cover the security services and everything up to and including the Food Safety Agency.

[Mr Jones]

I have to agree. One thing I do not agree with about the Bill is the scope in terms of some of the organisations that it covers; I raised my concerns about that on Second Reading.

Use of CHISs disrupts child exploitation, county lines, organised crime and—increasingly, when it comes to the security services—right-wing extremism, for which human intelligence is part of the suite of intelligence gathering that those services need to use. I do not agree with Lords amendment 2.

Lords amendment 4 is about juveniles. I pay tribute to my hon. Friend the Member for Walthamstow (Stella Creasy), who has raised what is clearly an emotive issue. I think that covert human intelligence sources should be authorised for the investigation of juvenile criminality only in very exceptional circumstances. But as the Solicitor General said, the impression being given again is that somehow the Bill for the first time gives our security services or police the ability to authorise juvenile covert human intelligence sources. It does not: the ability is there already.

When I intervened on the Solicitor General, I referred to the CHIS code of practice. The Regulation of Investigatory Powers (Juveniles) Order 2000 sets out the additional safeguards relating to junior CHISs. The Government need to find some way of incorporating that in the Bill. The Solicitor General said that it was rather long, but something needs to be there, to answer the issues being raised. I accept—I have seen evidence of this—that there are occasions when junior CHISs are needed: work around county lines gangs is just one example. But the provisions need strengthening, and I ask the Solicitor General to look at that when the Bill goes back to the other place.

Lords amendment 5, on judicial oversight, is important. It is important that the Investigatory Powers Commissioner looks at these issues. Personally, I am not in favour of pre-authorisation because, having spoken to MI5 and seen the transcripts of at least one of the interviews in one terrorist case, I see that these situations are dynamic. It would be very difficult if authorisation had to be obtained every time.

However, I am very much in favour of the Investigatory Powers Commissioner having scrutiny over the authorisations afterwards; that would allow an extra tier of judicial oversight, which would certainly knock on the head some of the nonsense we have heard about the Government or the security services being given the powers to murder people. I asked the Solicitor General about the annual report because it is important for public transparency and scrutiny of this place. I welcome what the Solicitor General said about bringing back an amendment on the issue. That would also allow us on the Intelligence and Security Committee to have some scrutiny.

Like my hon. Friend the Member for St Helens North, I am a little disappointed that Scotland has not agreed to this; to protect the public, it is vital that it does. However, I am reassured by what the Minister said in the House of Lords about that not in any way limiting MI5 operations in Scotland in the national security interests of the whole UK.

Finally, I turn to the issue just raised by the right hon. Member for Haltemprice and Howden (Mr Davis). If I have one big concern about the Bill, it is the Christmas tree of other agencies that are to have these powers; I have not yet personally been given a good explanation of why the Food Standards Agency needs them, for example. I am quite comfortable and satisfied not only that the security services, police and other agencies are able to run CHISs, but that they do it. They know what to do, they do it on a regular basis, and they have officers with huge experience. That gives me some reassurance that the operation of the Bill, when it becomes law, will be done properly. I would like some convincing that the Food Standards Agency and others that use these powers on a less regular basis will necessarily have that thoroughness.

Let me conclude by again thanking the Solicitor General and the right hon. Member for Old Bexley and Sidcup, who have interacted on the Bill with Members across the House, and by once again thanking the men and women of our security services.

[Mr David Davis]

May I, too, start by paying proper credit to the Minister for Security, my right hon. Friend the Member for Old Bexley and Sidcup (James Brokenshire)? James is a very old friend, a very long-standing colleague and an old protégé of mine. I spoke to him only a few days ago, and I have to tell the House that, given the seriousness of the operation that he is facing, he is both calmer and braver than I would be. We wish him well.

The origins of this Bill are, to say the least, somewhat doubtful. It started out with a circumstance where the state faced the prospect of being taken to the English courts over its current practice of giving many state agencies, including the Food Standards Agency, the right to authorise any criminal activity by their informants or agents, and having that power taken away from it. That is the origin of this Bill; that is where it comes from.

So what did the Government do? They cobbled together all the existing practices of their various police, intelligence and other agencies, good and bad—there were both good and bad—and set out to put them into law. That is not just theoretically problematic; it does not work perfectly today. For example, the Investigatory Powers Commissioner uncovered a case a couple of years ago where an MI6 agent or informant clearly very seriously broke the law, in breach of the guidelines he had been given, and the agency did not even inform the Minister before it carried on and allowed him to do the same again.

I am not prissy about the operation of our intelligence and police agencies. I was one of the Ministers who took through this House the Intelligence Services Act 1994. That is the one with the so-called licence-to-kill clause—the 007 clause, section 7 of that Act—which explicitly permits the action of the agencies to commit crimes under English law, but with restrictions and ministerial oversight built into it.

Nevertheless, this Bill, unamended, in my view goes too far, as is demonstrated by the fact that the amendments in front of us today were voted for in the Lords by a past Cabinet Secretary, a past Home Office permanent secretary, a past Foreign Office permanent secretary, a past National Security Adviser, a past Director of Public Prosecutions and a past reviewer of our counter-terrorism legislation—every single one of them more familiar at a close and tactical level than any Minister serving in Government. That is not meant as an insult; it is just a fact of life.

I have sympathy with many of the Lords amendments, but the business before us today contains, in my view, two vital amendments passed in the other place: Lords amendment 4, concerning the use of children as agents; and Lords amendment 2, placing limits on the type of crime that can be sanctioned. Both are entirely sensible amendments that significantly improve the Bill.

Let me start with child spies. The use of children as undercover informants is, in my view, very largely a morally repugnant policy. It results in children being put in dangerous positions during the investigation of serious and violent crimes with, frankly, minimal safeguards in place. The Investigatory Powers Commissioner has already confirmed that child spies can themselves often be part of violent gangs, or continuing victims—continuing: that is the important point—of child sexual abuse, when they are recruited as intelligence sources. We should normally be seeking to move heaven and earth to remove these children from their horrible situations. Instead, the Bill would allow them to be sent back into harm’s way with minimal safeguards in place.

I am speaking from memory here, so I hope I get this exactly right, but in the other place, an example was given of a 17-year-old who was basically sold for sex to a variety of people, along with a number of other young women and children—legally, children—under one of these CHIS arrangements, and this was allowed to continue. The result was that the child involved was the witness to a murder, and not just the witness: she was effectively coerced by her circumstance into helping to cover up the murder, having to hide the evidence and so on. This was a youngster who had been a product of the care system, who had bounced from authority to authority—as we have seen happen in so many terrible cases—yet she was left in these circumstances in pursuit of getting more information about the criminal she was under the control of.

The Bill also raises the possibility of 16 and 17-year-olds being authorised by any of a number of different agencies to spy on their parents. These agencies include police forces and the intelligence services, but it also extends to the others that the right hon. Member for North Durham (Mr Jones) referred to earlier. Do we really want to give such arbitrary and unfettered powers to such agencies? I, for one, do not under any circumstances. Amendment 4 would limit the deployment of child spies to exceptional circumstances, where all other methods to gain information have failed, and only if there is no risk of any reasonably foreseeable harm. We are not talking about MI5 or MI6 here, but about police agencies that are dealing with people, no doubt in county lines operations, sex trafficking operations and so on. Their first duty is to rescue the child, so it is an entirely sensible amendment, which I will support. It introduces real, meaningful safeguards that have been endorsed by the Children’s Commissioner.

However, on its own, amendment 4 is not enough. In its current form, the Bill also allows organisations to permit their employees and informants to commit criminal activity, with no express limit on the crimes that can be authorised—a point addressed by my right hon. Friend the Member for New Forest East (Dr Lewis), the Chairman of the Intelligence and Security Committee. In my view, this lack of an express limit is wrong. It can never be right for the state to authorise the gravest of crimes—we are talking about a narrow group of crimes here: torture, murder, or sexual violence—yet that is precisely what this Bill will do if left unamended. I am as sceptical about the human rights protections as my right hon. Friend, but for different reasons, and I will explain why. For a start, allowing this type of behaviour puts us out of step with our international allies. Our Five Eyes security partners recognise the need for limits. Australia, Canada, and nowadays America all have common-sense limits on what their covert agents can do to prevent this line from being crossed. We must now do the same.

Lord Carlile of Berriew, who frankly is a long-standing opponent of mine in these things—he mostly takes the authoritarian state line, despite the fact that he is nominally a liberal—has described this Bill as the most constitutionally dangerous legislation presented in his working life. I agree, which is why I support Lords amendment 2, which places clear, common-sense limits on the crimes that covert agents can be authorised to commit, ensuring that the worst crimes such as murder, torture and rape can never be authorised. It mirrors an amendment I tabled in Committee in the Commons, and if the CHIS Bill becomes law without those limits, it is almost certain to be challenged in the courts and may eventually be overturned. This will not be the first time we have been here: those who have been here for some years will remember the Data Retention and Investigatory Powers Act 2014, which went through the same process. Tom Watson and I took it to court; we won, and the Government had to rewrite it. I hope we do not have to do the same with this Bill—it would be unwise to repeat that experience.

Let me explain why that is a risk. The argument made by some hon. Members, particularly those on the Intelligence and Security Committee—who have close involvement with this issue, and whose experience I recognise—has to be put up against one test: if it is impossible for us, why is it not impossible for Australia, America and Canada? They can operate; why can’t we? The Government have to answer that question, otherwise I think they will find that this Bill will not stand.

There are real risks to providing these powers without limit. At the end of last year, the Investigatory Powers Commissioner reported that he had identified several weaknesses in MI6’s agent-running practices in the UK, leading to several errors, and, even worse, that high-risk covert agents had indulged in serious criminality overseas. Only this morning, MI5 confirmed in court that it would authorise one of its informants to carry out murder as part of its activities. So much, frankly, for the safeguards of the Human Rights Act. If MI5 is willing to say that in court, where in this exercise is the protection of the Human Rights Act, which was the Government’s defence last time and, indeed, the Minister’s defence today?

There is a real need for legislation in this area; I agree about that with pretty much everybody who has spoken. This is better in law than in some standard written inside an agency, with all the influences that being inside an agency brings to bear on it. There is a need for legislation, but this legislation is, bluntly, thrown together. In many ways, it incorporates some of the worst elements of the preceding arrangements, which need to be put right. The Minister kindly said that he will be listening before the Bill goes back to the Lords for amendment. I think there are amendments that could meet most of the concerns of those who have spoken, and that is what I would like to see before it goes back to the Lords.

--- Later in debate ---

[Sir Edward Leigh]

I would like to associate myself with the arguments that have been adduced today by the Solicitor General and by my right hon. Friend the Member for New Forest East (Dr Lewis). I am afraid that I must disagree with my other very good friend, my right hon. Friend the Member for Haltemprice and Howden (Mr Davis). Nobody doubts his complete honesty and passion in these matters, and I hope that he does not accuse me of being an authoritarian, because I really am not. I hope I am as committed to civil liberties as anybody, but we are under a ruthless attack. The Minister mentioned 28 attacks, and we all know the appalling atrocities that have been committed on our streets in recent years. We all know about the Manchester bombing and about Lee Rigby. The list is endless. We all know that there are absolutely ruthless people who care nothing about our values and who are prepared to destroy and kill innocent people. This is not a game of cricket, and we cannot play and defeat these people by traditional policing methods. We cannot rely simply on bugging their mobile phones. As my right hon. Friend the Member for New Forest East, who speaks with more experience than anybody else as Chairman of the Intelligence and Security Committee, said, we rely absolutely on covert intelligence sources: people going into these organisations and acting with extraordinary bravery.

I understand the motivation of what has been said in the other place, and I can understand why people are adducing these arguments based on human rights, but there is a possibility that if we were to accept these Lords amendments we would be putting the lives of our own people at risk. The most powerful point made by the Solicitor General was almost at the beginning of his speech when he said that the state should not prosecute people for actions that the state asks them to do. These people are working for us. They are working to defend our people, and I have to say to my right hon. Friend the Member for Haltemprice and Howden that if it is a choice between my daughters being blown up on the London tube and there being some slight and occasional infringement of the human rights of terrorists and potential terrorists, I know where my choice is. I think that the public are also on this space.

[Mr David Davis]

I do not think that my right hon. Friend was in the Chamber for the beginning of my speech, because I was going to refer to him and tell him that I did not agree with him that the Blairite approach to terrorism worked at all. Indeed, I think it made it considerably worse. In my speech I listed a whole series of people—the Home Office, the Foreign Office, security and prosecution specialists—who knew their way around this like the back of their hand, and they were not making the recommendations because they thought they needed to uphold some civil liberty. They were making the recommendations because they thought that what they were proposing worked better than what the Government were proposing, and that is what I think, too.

[Sir Edward Leigh]

I apologise for missing that. I was summoned in to see the Speaker, as I warned the Deputy Speaker, so I missed that part of my right hon. Friend’s speech, but I listened to everything that was said in the early part of the debate, and I followed it carefully. I made an intervention on the Opposition spokesman, and I still believe it. I frankly trust Mr Blair and Mr Brown more than I trust the former leader of the Labour party on these issues.

[Sir Edward Leigh]

Of course I agree with that, and I wanted to make that point as best I could. It is quite a weak argument to say that, because certain people who have been in authoritative positions make a certain argument, that it is therefore a clincher in argumentation. Actually, the point put by my right hon. Friend the Member for New Forest East was far more powerful, frankly. He was adducing a specific example. If it is laid down in statute that a covert agent cannot take a particular action, that is an invitation to terrorist or gangster groups to have an initiation ceremony based precisely on what is forbidden by Parliament. I thought that that was a completely unanswerable argument.

[Mr David Davis]

rose—

[Sir Edward Leigh]

But if my right hon. Friend wants to defeat it, let us hear it.

--- Later in debate ---

[Mr Davis]

I knew my right hon. Friend would liven up the debate. The test is not the test of authority. It is an empirical test. America, Australia and the other Five Eyes all have these limitations, and their intelligence agencies seem to work perfectly well.

[Sir Edward Leigh]

So he says, but I am no expert.

[Sir Edward Leigh]

Exactly, and I hazard a guess—as we have seen with the covid outbreak—we are a uniquely open society. We have very large levels of immigration. We have large minority communities. By the way, 99.9% totally oppose terrorists, do not believe in that and all the rest of it, but we know we are fundamentally and hugely vulnerable as a nation, probably much more vulnerable than Australia or New Zealand, so the fact that Australia does certain things does not apply. Personally, speaking for myself, I would rather listen to arguments from my right hon. Friend the Chair of the Intelligence and Security Committee, who has been briefed by MI5 and MI6, than to arguments adduced at second hand by my right hon. Friend the Member for Haltemprice and Howden, who tells me that in New Zealand and Australia they do things in a different way and are at no higher risk. In any court of law, the evidence adduced by my right hon. Friend the Member for New Forest East is more powerful than the arguments adduced by my other right hon. Friend.

We have just heard a passionate defence of children. No one denies the commitment of the hon. Member for Walthamstow (Stella Creasy) to the welfare of children, but when I was reading about this debate in some Sunday papers and other parts of the media at the weekend, it gave the impression that we were almost going back to Stalin’s Russia, and getting children to spy on their parents. This is ridiculous—we have to have a sense of proportion. We live in the United Kingdom. We have a system of law. Can we not trust our operatives in MI5, MI6 or the police force to act proportionately and in a necessary way?

[Mr David Davis]

No. That is why we have the law

[Sir Edward Leigh]

I am sorry, we already have human rights legislation—my right hon. Friend places a lot of faith in that. Like my right hon. Friend the Member for New Forest East, I think we have seen numerous instances where our armed forces have been treated appallingly in the past. There is great public concern about that. We do not want to put our security services, who are living in an infinitely more dangerous world, in the same position in which we put our armed forces. The Bill as it stands is proportionate and reasonable, and there has to be an element of trust. Personally, I think that it is extraordinarily unlikely in our country that MI5, MI6 or the police forces would act in such a way that if we knew what they were doing we would be horrified and think it was corrupt or that they were somehow abusing children. I suspect that if we use minors who are 16 or 17 in a certain way that is done very carefully. I suspect that we are not initiating any new behaviour at all and we are rescuing young people from cruel fate.

John Downey

David Davis Excerpts

Wednesday 26th February 2014 Commons Chamber

[The Attorney-General]

I am grateful to the hon. Lady for her supportive comments about how the CPS and myself approached this case. I think that she knows that an inquiry will be held, and questions for that should be directed to my right hon. Friend the Secretary of State for Northern Ireland. That matter will be dealt with by the PSNI and the independent ombudsman. Clearly, answers will be needed as to what has happened. In addition, I entirely accept that the public will want to be reassured as to whether this is an isolated instance of a letter being sent mistakenly or whether there might be other such examples, in which case people will want to know what can be done about that. My understanding is that since the current Government came into office some 38 letters have been sent out. I hesitated to comment about what happened under the previous Administration, but once I have that information I will, of course, supply it. It is right to say that the person who had been charged, Mr Downey, denied responsibility for any role in this outrage.

The final comment I would simply make is this: the victims, including those who survived but were seriously injured, and their families are a matter that the House has constantly to keep in mind. The rule of law requires that those who are accused of grave crimes should be brought to justice, unless there is some overwhelming public interest to the contrary, and I have to say that in this case it was clear to me that the public interest was entirely in favour of seeking to bring this prosecution.

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

This country prides itself on its Government operating solely under the rule of law, so I hope that my right hon. and learned Friend will forgive a layman’s question about the law in this case. He describes an administrative system, but under what law is this administrative system created whereby a well-respected judge in this country accepted that this letter should, in effect, give this man an amnesty? Whether or not the Attorney-General describes it in those terms, that will be how it is seen both in this country, including in Northern Ireland, and abroad. So under what law is this constituted? Can he give the House an absolute assurance that he is sure that the criteria that he laid down—the administrative ones—have been followed in all cases?

[The Attorney-General]

My right hon. Friend is, of course, right that judges should interpret and implement the law, but I have to say that I have no reason to fault the judgment in this case. As well as the public interest in prosecuting, clear issues of fairness in the way in which prosecutions and investigations are conducted are involved, which are subject to the potential for abuse of process applications—that is what took place in this case.

The judge provided reasons, clearly set out, as to why, in respect of one of the four grounds advanced, which centred on the letter that had been sent, it would in his view be wrong and an abuse of process if the prosecution were allowed to continue. That centred on the fact that the person concerned, Mr Downey, had been misled by the letter. I do not think that I can say any more than that.

As to the principles underlying the other letters, this was an administrative process—one that was certainly lawful—in providing information solely to those who were not wanted. As I said earlier, it is quite clear from this instance that something went badly wrong. Whether it went badly wrong in other instances is not a matter about which I can, at the moment, help the House.

Points of Order

David Davis Excerpts

Wednesday 11th December 2013 Commons Chamber

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

On a point of order, Mr Speaker. In a named day question on 5 December this year, I asked the Attorney-General how many libel settlements, and of what value, the Crown Prosecution Service had made in each year between 2007 and 2012. I was given the answer that the CPS had made no libel settlements in that period. Unfortunately, in May 2008, in a case adjudicated by Master Eyre between Hardcash Productions and the Director of Public Prosecutions and the chief constable of West Midlands police, there was a settlement of £50,000 between the two defendants. I am certain, because I know him well, that there is nobody less likely to mislead the House than the Attorney-General. Therefore, he must be depending upon information given to him by the Crown Prosecution Service. If this House cannot depend on the organisation that is supposedly committed to promoting justice in this country to give us the truth, the whole truth and nothing but the truth, what can you do to defend us?

[Mr Speaker]

I am grateful to the right hon. Gentleman for his point of order. In the first instance, I can ask the Attorney-General to respond, and we will see what happens.

Injunctions

David Davis Excerpts

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

I shall deal, so far as I can, with each point in turn. First, the Government have made it clear that it will be a Joint Committee, and have asked

“Business Managers to establish a Joint Committee of both Houses to consider these issues. The remit will be to advise the Government on how current arrangements can be improved and put on a more sustainable footing, aiming to report in the autumn.”

The Government have also

“asked the Justice Secretary and Culture Secretary to liaise…on the Terms of Reference.”

The right hon. Gentleman’s second question was about privacy law. It is undoubtedly the case that it would be open to this House to enact a privacy law, if it wished. However, I have to say to the right hon. Gentleman that he misquoted my right hon. Friend the Culture Secretary, as what he actually said was:

“We’re not minded to have a new privacy law but we’re not ruling out the need for legislative changes.”

If I may say so, it is possible to have legislative change without necessarily having a full-blown privacy law, and this seems to me to be precisely the sort of issue that the Committee will need to consider, and in a measured and sensible fashion.

The right hon. Gentleman rightly raised the question as to whether a privacy law would make any difference to the existing arrangements. That, too, is an interesting subject for both legal and political debate, and it is precisely because that needs to take place that the suggestion has come forward that this is the best way in which to proceed.

Finally, the right hon. Gentleman asked a number of questions about enforceability. It has been clear for some time in a number of different spheres that the enforceability of court orders and injunctions presents a challenge now that information can rapidly be posted on the internet, but that does not necessarily mean that the right course of action is to abandon any attempt at preventing people from putting out information that may, in some circumstances, be enormously damaging to vulnerable people or, indeed, be the peddling of lies.

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

May I press my right hon. and learned Friend further on the second issue raised by my hon. Friend the Member for Maldon (Mr Whittingdale): the protection of parliamentary privilege? Last week in the report and the subsequent press conference, the Master of the Rolls and the Lord Chief Justice intimated that they wanted the House of Commons to extend the sub judice rules in order to restrict the use of freedom of speech under parliamentary privilege in this House and/or the reporting of it. Had that applied in 2009, the public would not be aware today of the Trafigura super-injunction and this whole issue would not have come to light. Can my right hon. and learned Friend please ensure that these proposals by the Master of the Rolls and the Lord Chief Justice do not in any way restrict either our rights or the rights of the press to report?

[The Attorney-General]

I have to say to my right hon. Friend that my reading of what was said is rather different. In the clearest and most unequivocal terms, both the Lord Chief Justice and the Master of the Rolls spelled out the existing fact: that the privilege we have under article 9 of the Bill of Rights is unimpeachable in any court in respect of what is said in this Chamber. The control mechanism that is put in place is, in fact, entirely dependent on yourself, Mr Speaker. That then raises the question of the extent to which there is a necessity, by convention, for comity, whereby this House, through Mr Speaker’s authority, respects the rulings of other courts, being a court itself. As I understand it, there has never been any suggestion that any of the proposals being put forward call into question those basic principles. Indeed, as I pointed out in an earlier answer, the evidence is pretty overwhelming that where there is a lack of clarity in this area in terms of communication between constituent and Member of Parliament, there seems to be a universal view that it would be well if we could clarify things, and the Government recognise that.

Voting by Prisoners

David Davis Excerpts

Thursday 10th February 2011 Commons Chamber

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

I beg to move,

That this House notes the ruling of the European Court of Human Rights in Hirst v the United Kingdom in which it held that there had been no substantive debate by members of the legislature on the continued justification for maintaining a general restriction on the right of prisoners to vote; acknowledges the treaty obligations of the UK; is of the opinion that legislative decisions of this nature should be a matter for democratically-elected lawmakers; and supports the current situation in which no prisoner is able to vote except those imprisoned for contempt, default or on remand.

The motion stands in the names of the right hon. Member for Blackburn (Mr Straw), my hon. Friend the Member for Esher and Walton (Mr Raab), my hon. and learned Friend the Member for Sleaford and North Hykeham (Stephen Phillips), my hon. Friends the Members for Kettering (Mr Hollobone) and for Basildon and Billericay (Mr Baron) and, of course, myself.

I thank the Backbench Business Committee for giving us the opportunity today to have this debate. There have been many important debates in this slot, but I lay claim to this one being unique, because it gives this House—not the Government—the right to assert its own right to make a decision on something of very great democratic importance, and to return that decision to itself.

The motion before the House about prisoner votes splits cleanly into two parts. First, is the requirement to give prisoners the vote sensible, just, right and proper? Secondly, who should decide? Should it be the European Court of Human Rights, or this House on behalf of the British people?

Let me start with the substantive question: should prisoners be given the vote? I yield to no one in my commitment to the defence of the ancient freedoms and rights of this country, and I hope the House accepts that, but there is an important point about not confusing the rights that are properly held by everybody who is a British citizen or who lives in our country with those much more circumscribed rights that are given to prisoners. Prisoners of course have rights—the right to be treated decently, not to be ill treated, to be fed, and to be kept warm, given shelter and clothing—but those rights do not extend to the same rights of a free British citizen.

When someone commits a crime that is sufficiently serious to put them in prison, they sacrifice many important rights: not only their liberty, of course, but their freedom of association, which is also guaranteed under the UN charter of human rights and the European convention on human rights, and their right to vote. The concept is simple and straightforward: “If you break the law, you cannot make the law.”

The European Court of Human Rights argues that that is a blanket rule—that is its rather pejorative term. But, actually, that is untrue, and the Court is ill informed in saying so, because three categories of prisoner are excluded from losing the right: remand prisoners, contempt of court prisoners and fine defaulters. None of those loses the vote, and for different reasons. The remand prisoner does not because they have not been convicted or sentenced, so it is inappropriate for them to lose it until they are sentenced. That is a logical exception. The other two do not lose it because their crimes are below the threshold of seriousness that we judge means that they lose the civic right to vote.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

I congratulate my right hon. Friend on obtaining the debate and on seizing upon the issue. I served on the Centre for Social Justice task force on prisons, chaired by our former friend Jonathan Aitken, and we discovered absolutely no demand from prisoners for that so-called right. Indeed, it was never an issue in the British prison system until the lawyers got hold of it through the European convention on human rights, and to that extent it is completely irrelevant to the real issues that face our prison system and the prisoners in it.

[Mr Davis]

I could not agree more with my hon. Friend. Indeed, if there were an argument that giving prisoners the vote would cut recidivism, cut re-offending rates and help the public in that way, I would consider the matter, but giving prisoners the vote would not stop one crime in this country, and that is after all the point of the justice system in the first place.

Let me return to the main text. Other prisoners do lose the vote, but we must understand that for someone to be sent to prison in this country in this day and age requires a very serious crime or series of crimes. There are convicted burglars and convicted violent criminals, who have never been to prison, walking the streets today, so there is a very serious threshold.

[Naomi Long (Belfast East) (Alliance)]

Recently, in Northern Ireland, a young woman was given a custodial sentence for a first offence of stealing a pair of jeans worth £10. The case is being appealed, but it suggests that not every custodial sentence is given because of a very serious offence or string of serious offences.

[Mr Davis]

There is an old argument that hard cases make bad law, and it may well be—it sounds very likely—that that young lady’s custodial sentence will not be upheld. The general point, however, is very clear: it takes a pretty serious crime to get someone sent to prison. As a result, that person has broken their contract with society to such a serious extent that they have lost all these rights: their liberty, their freedom of association and their right to vote.

The law is not unjust. Every citizen knows that the same level of crime that costs them their liberty costs them their vote. What the Court calls a blanket rule, I call uniform justice.

[Dr Andrew Murrison (South West Wiltshire) (Con)]

Does my right hon. Friend think it reasonable for the European Court of Human Rights to insist on a right for individuals if those individuals have not bothered either to register to vote or, indeed, to vote when they have not been in custody?

--- Later in debate ---

[Mr Davis]

My hon. Friend makes an interesting point. It would be quite interesting to see how many prisoners have ever voted, let alone how many voted at every election in the run-up to their incarceration.

The Court also argues that the penalty is not proportionate, but again that is plainly wrong. We are not one of those countries where, when someone is convicted of a criminal offence and sentenced to prison, they lose the right to vote for ever. Such places do exist. Indeed, in one state of the United States, people lose their right to vote de facto for ever, but we are not one of those places. When someone is in prison, they cannot vote; when they are released, all their civic rights are completely reinstated, meaning that that denial is an absolutely proportionate response to the seriousness of the crime. If the sentence reflects the crime, the denial of the vote also reflects the crime.

Let me be clear. In my view, convicted prisoners should not have the vote: robbery, rape, drug dealing—frankly, the crime does not matter, given its seriousness. But, despite what the Justice Secretary said the other day, violent criminals, sex offenders and drug dealers will get the vote if we accept the compromises that have been aired so far. The Government talk about a less than four-year rule, but 28,000 people convicted of serious violent crimes, sex crimes and crimes against children would be incorporated in that. Even a one-year rule would include thousands of people, many of whom will have committed serious crimes from which we would recoil.

[Mr John Baron (Basildon and Billericay) (Con)]

I completely agree with my right hon. Friend. The right to vote underpins our democracy, but that right is a qualified right, not an absolute one. Does he agree that these qualifications should therefore be established by this Parliament, not by unelected European institutions that wish to bypass our established laws?

[Mr Davis]

My hon. Friend takes me ahead of myself. As he well knows, the simple truth is that these are politically appointed judges, many of whom do not have enormous experience in court. Indeed, some of them have no experience in court, even in their own countries, let alone ours.

[Mr David Evennett (Bexleyheath and Crayford) (Con)]

I congratulate my right hon. Friend on obtaining this debate and on his excellent speech, which is developing a most interesting theme. Does he agree that giving votes to any prisoners is quite incomprehensible to our constituents, who sent us here to make the rules and the laws, not to have the European Court make them for us?

[Mr Davis]

Of course my hon. Friend is right. One of the points about laws in a democracy is that they exist with, at the very least, the acquiescence—the consent, we hope—of everybody in that democracy. Between 75% and 90% of the population cannot understand what we are doing even considering this proposal.

Let me go back to the compromises that have been talked about. It is not my aim to put the Government in a difficult position from which they cannot escape; the issue is whether those compromises would work. The proposals put up so far—four years, one year, six months—would not work. They would not escape the threat that we have had held over us of compensation or some other form of penalty against our taxpayers. In fact, one member of the Council of Europe, Austria, did give the vote to prisoners serving less than one year, and it then appeared in the Court and was found against.

Just how ridiculous this is became clear earlier this week, when the European Commissioner for Human Rights appeared on Radio 4. Because he had said that a blanket rule would not work, he was asked what the guideline was, and he said, “A breach of electoral law.” That would put us in the ridiculous position whereby we denied the vote to somebody who broke electoral law, in however minor a way, yet gave it to the rapist and the murderer. It is so ridiculous that I cannot believe he really meant it.

[Robert Halfon (Harlow) (Con)]

I congratulate my right hon. Friend on securing this important debate. Does he agree that it is rather strange that we are being forced to do this by the European Court of Human Rights, many of whose own judges come from authoritarian regimes? Is it not time to withdraw from its jurisdiction?

[Mr Davis]

I am now going to lose the House, because I do not agree with withdrawing from the regime. I will explain why in a moment.

Let me conclude this half of my speech—I am using up too much of my time giving way—by saying that it is clear to me that our current system is appropriate, just, proportionate, simple and well understood, and we should stick with it.

The second substantive issue before us is who should decide—the European Court or these Houses of Parliament? British courts themselves are clear on the matter. They rejected the claims of Mr Hirst, the axe killer, at every stage. The High Court said in terms that this was

“plainly a matter for Parliament, not the courts”.

To those who say, “But we must obey the law”, I say that the historical task of this Parliament is to correct bad law, no matter where it comes from.

[George Hollingbery (Meon Valley) (Con)]

Will my right hon. Friend give way?

[Mr Davis]

For the last time.

[George Hollingbery]

The second half of my right hon. Friend’s argument illustrates the difficulty in the motion, which seems to conflate two highly related but different issues, one of which is the right of prisoners to vote and the other is the enforceability of the European convention on human rights. As a parliamentarian, I find myself split: it is very difficult to know how I am supposed to vote once on something that asks two questions.

[Mr Davis]

My hon. Friend faces this issue every time he votes on a Third Reading; if he has not noticed that yet, I am sorry for him. The truth is that there are two issues, both important, in my view, and both with enormous strength behind them. If he does not feel that he can vote on the motion, perhaps he should abstain.

The Court’s authority rests solely on the European convention on human rights, which is both the source of its power and the limit of its power. When Britain signed up to the European convention on human rights, it was to help to prevent a repeat of the horrors of the second world war and of Nazism, and, indeed, the horrors of the growing Soviet empire at that point in time; it was to protect people from ill-treatment, and to protect their life, liberty, free speech, and right to a fair trial. Those are all very serious and fundamental issues. What we emphatically did not sign up for was giving prisoners the right to vote.

[Mr Robert Buckland (South Swindon) (Con)]

Will my right hon. Friend give way?

[Mr Davis]

For the very last time.

[Mr Buckland]

Was not the convention called the charter of fundamental rights and freedoms at that time, and have we not lost the plot in terms of its development?

[Mr Davis]

My hon. Friend is right—he makes a very good point. The then Labour Government well understood this when they excluded from the text the words “universal suffrage”. They did that because although we have a very wide and general suffrage and a very democratic state, we do not have universal suffrage. The Strasbourg Court has imposed judgments on Britain that are outside the original treaty. We have signed a contract; it has gone beyond that contract.

[The Attorney-General (Mr Dominic Grieve)]

Will my right hon. Friend give way?

[Mr Davis]

If my right hon. and learned Friend insists, although I am very short of time.

[The Attorney-General]

I have one advantage over my right hon. Friend, which is to have been able to go and look at the archives on what happened in 1951. I think the reasons why we objected to the use of the words “universal suffrage” were twofold: first, there was some anxiety over the position in the colonies; and secondly, there was a concern about whether proportional representation would be imposed on us as a result. Once those issues were clarified and removed, the United Kingdom signed up.

[Mr Davis]

I am sure that my right hon. and learned Friend, who is a very close friend as well, checked the travail préparatoire in which one of his predecessors—Dowson, I think—said in terms that we had general suffrage but it could not be described as universal suffrage. That is what I was resting the point on.

Since about 1978, the European Court has adopted the view that the convention was what it termed “a living instrument”. That meant that the Court could arrogate to itself the right to decide what its remit was. It did that without any mandate from this House or any other house of representatives of the member states of the Council of Europe. This has been picked up, not by some Tory or right-wing Eurosceptic, but by Lord Justice Hoffmann, an eminent judge with enormous civil liberties credentials, who said that the Strasbourg Court has

“been unable to resist the temptation to aggrandise its jurisdiction and to impose uniform rules on member states”.

Even the Court itself understands this. In the minority report, Judge Costa, the President of the Court, a man who believes in extending the powers of his own court, said that he

“accepted that the States have a wide margin of appreciation to decide on the aims of any restriction, limitation or even outright ban on the vote”

and pointed out that the judges were not legislators and should not overrule the legislatures of the Council of Europe.

I want the European Court to succeed at its main business, which is why I differed from my hon. Friend the Member for Harlow (Robert Halfon). However, I do not want it to try to interfere in the business of legislatures around the European continent.

[Andrew Bridgen (North West Leicestershire) (Con)]

rose—

[Sir Alan Beith (Berwick-upon-Tweed) (LD)]

rose—

[Mr Davis]

If colleagues will forgive me, I am almost out of time.

So where do we go from here? If Parliament decides by a strong majority today, the Government will have to go back to the Court and tell it to think again, because it cannot deliver a third of its rulings. If this House will not provide a change in the law, it cannot deliver a change in the law. That will lead the Court to have to decide how it deals with this sort of crisis in future. Lord Justice Judge and Lady Justice Arden, and others, have predicted this crisis and pointed out that we need to have the right of recall, the right of review and the right of challenge. That is what should come out of this motion.

As my right hon. and learned Friend the Attorney-General was kind enough to intervene on me, I thought I would remind him that today is almost the anniversary of the day when he said the following words:

“The Government must allow a parliamentary debate which gives MPs the opportunity to insist on retaining our existing practice that convicted prisoners can't vote.”

I agreed with him then, and I agree with him now. The House should insist that this is our decision, and from this place we will not move.