Report of the Iraq Inquiry

David Davis Excerpts

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 Dominic Grieve (Beaconsfield) (Con)]

It is a pleasure to follow the right hon. Member for Gordon (Alex Salmond) and my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). There is no doubt that they have two very clear advantages over me in this debate, in that both of them opposed the motion in the House in 2003, which initiated our military action in Iraq. I, on the other hand, supported it—something that I have come very much to regret. I supported it at the time because I was persuaded by the arguments eloquently put forward by the Prime Minister, Mr Blair. He said that, in his view, Saddam Hussein was a real and present danger in the immediate context and that that justified taking military action against him, even without going back for a further resolution of the United Nations Security Council, but relying on the previous resolutions, which, as considerable evidence showed, had been serially breached by Saddam Hussein, certainly in his non co-operation. On that basis, I voted for the motion, as did many others who are still Members and present in this House today.

Sir John Chilcot’s report highlights how the decision-making processes of government can become distorted under pressure of events. I should like to think that I am always a bit wary of that. The distortions highlighted in the report are so considerable that it highlights a dysfunctionality at the heart of Mr Blair’s Government that I hope may have been exceptional to him. For all that, there are plenty of cautionary tales for us in this House today that we can look at in the current context just as much as they would have been considered at the time.

This point seems to have been rather well made already that, and I will not repeat it, because Mr Blair had formed in his view a very strong resolution that we should support the United States, including in removing Saddam Hussein and effecting regime change, the entirety of the processes of government and of Whitehall were then skewed in order to achieve that aim and had the mischief of disregarding all the evidence that might be available to contradict the belief that that was the right course of action to take—whether it was intelligence information or the thorny problem of legality, both of which I wish to touch on briefly this afternoon.

On the question of the intelligence, those of us who have been in government, or who have served on the National Security Council as I have—indeed it is also true of my current role as Chairman of the Intelligence and Security Committee—know perfectly well that intelligence, often obtained at great risk and which is with difficulty, can only be what it is, a tool in decision making. The intelligence may be mistaken. One cannot prevent that in a human society, and one cannot guarantee that its interpretation will be correct. My impression during my time in government was that the intelligence agencies and the Joint Intelligence Committee now go to very considerable lengths to point out the limits of the use to which intelligence can properly be put—a lesson which, I suspect, they derived from this experience.

Reading Sir John Chilcot’s report, one can only conclude that the way in which intelligence was handled during the run-up to the Iraq war is, in some cases, truly breathtaking. It makes very troublesome reading. I hope very much—I am not going to say anything more about this—that those within the agencies who now do the work will read and reread Sir John’s report in order to remind themselves of how perfectly reasonable intelligence was skewed and, I have to say, misused for the purposes of justifying a theory, and then, I am afraid, misused by Mr Blair when he came to address this House in the defining moment before the war was sanctioned by this Parliament.

The certainties that were engendered were never present. My right hon. Friend the Member for Hitchin and Harpenden (Mr Lilley) made a very good intervention about this last week when he said that if we had taken the time and trouble to read some of the background information available, we might have doubted some of the certainties that were being expressed. I think he was absolutely right about that, and that is another burden that Members of this House who participated in that debate will have to bear.

So much for the intelligence. What about the process of legal advice? I was at the heart of trying to provide legal advice to Government when I was a Law Officer. My hon. and learned Friend the Solicitor General is on the Front Bench and he, too, has been involved in those processes. As Law Officers know, legal advice is often advice which cannot in any way be certain. Legal advice is exactly what it says it is. In some cases, particularly when one is dealing with international law, the question whether one is on the right side or the wrong side of international law is an intensely grey area, precisely because there is no ultimate tribunal to determine those issues. Yet at the heart of the British Government’s doctrine and ethics is the principle that we have to act lawfully at all times. It is for the Law Officers to try to steer that course.

What shines through to me, reading the Chilcot inquiry report, is not, as some critics have said, that Lord Goldsmith as Attorney General abandoned legal objectivity. Now that I have read the Chilcot inquiry report and looked at these passages very carefully, it seems to me that he fulfilled those criteria as best he possibly could, but that he was drawn into a process which in itself was utterly flawed, because it cherry-picked whatever bit of the advice that he provided suited those who wanted to present it, and then sold it in that way both to the Cabinet, who never properly inquired or scrutinised it at all, and ultimately to the public.

[Mr David Davis]

Does my right hon. and learned Friend really think that the Attorney General met all his duties? The report refers to the final question to Tony Blair, which it says was answered perfunctorily, about whether the conditions had been met. Surely he should have been a little more pressing, rather than accepting a perfunctory reply before changing his view.

[Mr Grieve]

I simply quote from paragraph 810 of the executive summary:

“It is an essential part of the legal basis for military action”—

this was written by an official in the Attorney General’s Department—

“without a further resolution of the Security Council that there is strong evidence that Iraq has failed to comply with and co-operate fully in the implementation of resolution 1441 and has thus failed to take the final opportunity offered by the Security Council in that resolution. The Attorney General understands that it is unequivocally the Prime Minister’s view that Iraq has committed further material breaches as specified in [operative] paragraph 4 of resolution 1441, but as this is a judgment for the Prime Minister, the Attorney would be grateful for confirmation that this is the case.”

It is important to understand one of the big changes that has probably taken place between 2003 and today in the way in which a Law Officer’s advice is secured. My impression from reading Chilcot—I hope I have got this right—is that, in practice, the Attorney General was provided with only sketched backgrounds of the factual analysis on which his legal opinion was being sought. The big difference now, and I can tell the House this without giving away state secrets, is that if Law Officers are asked to advise on a factual basis that involves a serious or complex problem of international law, they will receive briefing that is as good as, and—if they demand it—potentially better than, that which would be provided to the Prime Minister himself as to the intelligence and factual base that justifies it, so they have to make their own independent assessment. However, it is quite clear that, in 2003, and, I suspect, even before then—I do not think this was peculiar to 2003—that was not the practice that was adopted; it was not how Government worked. In practice, the Law Officer, Lord Goldsmith, was placed in a position where he had, reasonably, to take on trust the factual assessments made by others, and particularly the Prime Minister.

I want to make it clear that I cannot make a judgment on whether Lord Goldsmith’s advice of 7 March was right or not, but he set out—correctly, in my view—the alternative interpretations available for resolution 1441. I simply make the point, as I did in my intervention, that there are areas of international law that raise massive difficulties of interpretation. If, for example, we stuck, as some jurists would argue, to the principle that no military intervention can take place without UN Security Council authorisation, the well-established United Kingdom doctrine of intervening on the basis of humanitarian necessity, which is what led us to be able to take action in Kosovo, would never have come about. I simply chuck that into the pool of the debate the House has had in trying to understand some of the complexities.

Of course, none of that gets away from the fact that the debate would likely have been very different in Cabinet if Lord Goldsmith’s advice in its original form had been properly presented, circulated and discussed. As any of us who have been in government know, the process by which we moderate each other’s opinions is by challenging them. If we do not have a process of challenge, we should not be surprised that, at the end of the day, people simply end up rubber-stamping decisions because it appears convenient to do so. One of the interesting features, I might add, of being in coalition was that one quickly realised that because some members of, for example, the National Security Council or the Cabinet were not beholden to the Prime Minister, the level of challenge was raised in a manner that one might not necessarily have found in a single-party Government, which is an interesting reflection on some of the problems that flow from it. Of course, when one has a Prime Minister who is utterly dominant after four or five years in government and receiving a triumphant second mandate, these things become even harder.

Those, then, are my thoughts on those two principal issues. There are lots of other issues in the report, which is one of the most compelling reads I have had. I am not sure I am going to be able to get through the whole lot, but I will certainly try to read much more of it.

Let me just make two final points. First, the right hon. Member for Gordon (Alex Salmond) expressed the desire that accountability should lead to somebody being held at least in contempt of this House if Mr Blair did act improperly. I simply say to him that, just as some people were talking about impeachment, which was last used in 1806, contempt proceedings in Parliament—unless they are based on findings made in an external tribunal that meets article 6 compliance —will, in practice, be very difficult. I would strongly argue that, tempting as such a route might suggest itself to be, the practical difficulties are likely to make it impossible to follow. I say that in all sincerity.

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[Margaret Beckett (Derby South) (Lab)]

I want to begin where the right hon. and learned Member for Beaconsfield (Mr Grieve), who has just spoken very eloquently, ended. I entirely agree that there is much to learn from the Chilcot report. One of the things that I am most concerned about—I know that it is very early to say this—is that it is far from clear to me that we are actually going to learn the things that we should.

On the morning of the publication of the Chilcot report, I listened to the radio and heard a number of commentators and, indeed, Members of this House, including, I think the right hon. Member for Haltemprice and Howden (Mr Davis), saying one after another, “Of course, we all know what happened.” The script was simple and familiar: “Tony Blair knew there were no weapons of mass destruction. He deliberately lied to the House of Commons about whether there was intelligence to suggest that there were such weapons. He made a secret pact with George Bush long before the war, committing us to it in all circumstances, so everything that happened in between was irrelevant, and the war itself was illegal because there was no second United Nations resolution.”

It seems to me that this is the right moment to point out that this is, I think, the fifth inquiry into what happened in 2003 and before and after the invasion, and, as far as I recall, none of them has verified that incredibly simply script. Nor does it seem to me that the Chilcot report confirms it.

The inquiry team accepts, as have the right hon. and learned Member for Rushcliffe (Mr Clarke) and the former Attorney General, the right hon. and learned Member for Beaconsfield, that when the Prime Minister told this House that he believed that Saddam Hussein had weapons of mass destruction, he believed it implicitly to be true. He was not making up the intelligence or telling this House anything other than what he believed to be true, let alone inventing a lie, which seems to be being implied. Indeed, the report points out that the basic case that Saddam Hussein had retained weapons of mass destruction and that he had the intent to develop more, given the opportunity, was what the Joint Intelligence Committee itself believed.

It seems to me that one of the most important things that comes out of Chilcot—the former Attorney General touched on this—is the degree to which whole swathes of people whose professional judgment was involved were mistaken, and that continued to be the case right up to and, indeed, beyond the invasion. Chilcot makes it clear that that is what the Joint Intelligence Committee had continually reported both to the then Prime Minister and to the Cabinet. The report states:

“There is no evidence that intelligence was improperly included in the dossier or that No. 10 improperly influenced the text…The Inquiry is not questioning Mr Blair’s belief, which he consistently reiterated…or his legitimate role in advocating Government policy.”

It is really important to bear that in mind, especially as one listens to some of the detailed and very determined attempts to create a different impression.

Sir John Chilcot also pointed out that, along with the dangers that the intelligence community believed that Saddam Hussein presented, it believed that,

“Saddam Hussein could not be removed without an invasion.”

That was also thought to be relevant.

Of course, with the benefit of hindsight we all know that the intelligence community and the then Prime Minister were wrong, but we did not know it then. What is more, what our intelligence services believed was believed by almost every other intelligence service in the world, including the French and the Russians, and there is no doubt that that is why Security Council resolution 1441 was carried unanimously.

[Mr David Davis]

The right hon. Lady said that we did not know at the time. However, on 15 March 2002, the JIC said that the intelligence on Iraq’s weapons of mass destruction and ballistic missile programmes was sporadic and patchy. Three weeks later, in Texas, Tony Blair said:

“We know he has been developing these weapons. We know that those weapons constitute a threat”.

How did we not know at the time, and how is that consistent?

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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.

[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.

Daesh: Genocide of Minorities

David Davis Excerpts

Wednesday 20th April 2016 Commons Chamber

[Stephen Twigg]

My hon. Friend is absolutely right that the evidence is there. I suppose that human testimony provides an important additional dimension, but he is right that the evidence is extremely well documented. It is estimated that more than 3,000 Yazidi women are being held against their will by Daesh.

A glance at the history of this region should surely lead us to learn some lessons today. A century ago, the Armenians and Assyrians suffered a genocide. I absolutely agree with the hon. Member for Congleton that the policy of Daesh towards the Yazidi, Christians and other minorities amounts to genocide.

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

I fully intend to support and vote for this important motion. When I was in Syria two weeks ago, I interviewed about 23 or 24 people from various groups who had suffered, including Christians and Alawites. My key point in the debate is that not just Daesh was responsible, but Daesh and its allies. We should remember that when we come to bring these cases before the international court.

[Stephen Twigg]

The right hon. Gentleman’s makes an extremely important point, which I hope will be elaborated during today’s debate.

European Union Referendum Bill

David Davis Excerpts

Tuesday 9th June 2015 Commons Chamber

[Craig Mackinlay (South Thanet) (Con)]

I am sure Members will be unsurprised that I have stayed for the whole day of debate on a topic that is of great interest to me. Indeed, it is the topic that brought to the fore my interest in politics some 24 years ago.

It is 40 years since this nation has had a decision of any type made by the people of this country—by their hand alone—about where the European Union is going. I give great credit to the Foreign Secretary for his very wise words this morning and for his great preamble to this debate. He really had the heart that I have in some of the concerns he raised. I also pay tribute to the shadow Foreign Secretary, because he argued his case equally well, albeit from a completely different viewpoint. Indeed, I wonder how Labour Members will vote later and as this debate develops.

We have heard this afternoon from some very good right hon. and hon. Members about the pros and cons of various aspects of the European Union, and I do not suppose I need to expand on too many of them. However, when we compare what we have today with the 1975 settlement and the agreement that the British people gave to what was then the EEC, and we look at its move through the Single European Act, the Maastricht treaty, to the treaties of Amsterdam and of Lisbon, we find that we have a very different beast. It is only right that the issue is put to a referendum of the British people, so for me this is a day of great joy. It is, perhaps, the end of a journey; but it is also the start of a brand-new one.

I suggest to Members on both sides of the House, but to more on the Opposition Benches, I think, that when they say they would stay in the European Union no matter what, which we hear a lot, they ought to consider where we were those 40 years ago compared with where we are today. If we cast our minds forward 40 years, we can imagine there being no purpose to this place whatsoever.

Referendums do not come round very often, so this has to be a proper referendum. It must not be pored and raked over after the event, with people saying, “It wasn’t quite right. It wasn’t quite fair”. I am fairly comfortable with the question as it stands. It has gone through the Electoral Commission, which, for many of us, has pluses and minuses—we used to run elections quite easily without thousands of sheets of paper—but on this I think it has got it fairly right. However, I was more than convinced by last year’s Wharton words, which had a complete lack of ambiguity, were simple and did not favour one way or the other. The words in the Bill have the benefit of simplicity but still angle slightly towards the status quo, and therefore do not have the neutrality I would prefer.

The purdah period has been discussed widely this afternoon. It was good to hear from certain Opposition Members—as ever, I listened to the hon. Member for Vauxhall (Kate Hoey) very closely. The Bill is full of clauses about loans, permitted persons and maximum expenditure, but it puts aside section 125 of the Political Parties, Elections and Referendums Act 2000, which causes me concern. On this, I actually agree with the right hon. Member for Gordon (Alex Salmond). I would perhaps be more comfortable if it was set out in legislation exactly who could spend what, how and where. Of course, I am most concerned about how the European Commission spends public money. I want the Commission, in particular, excluded from what is a personal debate within these islands on a constitutional matter.

I was taken by other speeches this afternoon, particularly that by my right hon. Friend the Member for North Somerset (Dr Fox)—there were others, but hon. Members must forgive me for not knowing everybody’s constituencies just yet. The important words are those in all the treaties: “ever-closer union”. As one advertiser says of its product, it means exactly what it says on the tin. In fighting my election campaign over the past 10 months—I am only 90% of the person I was, having walked so much—I found that this referendum was on the lips of many. People want this referendum, and it is right that we have it, but I want it done pretty much for good. The lid must not come off again for 40 years. We must not pore over it afterwards and say, “It was not right and fair”. That is what I will fight and argue for in this place, and doubtless, when the debate moves to the streets of this country, I will make clear which side of the debate I am on. Currently, I could support staying in the EU. It would have to be massively reformed, but I am not one to close my mind; I am here to listen to arguments. That said, I want what we thought it was going to be: free trade and friendship.

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

On a point of order, Mr Speaker. I apologise for interfering briefly in this important debate. On Thursday, the Independent Reviewer of Terrorism Legislation, Mr David Anderson, is publishing a 300-page report on surveillance strategy. It is normal for the Government’s reports to be presented to the House first, before anybody else, but I understand that there are major press briefings tomorrow about it, meaning that we will not be the first to hear about it. We will hear about it first on the “Today” programme, rather than in the House of Commons. Can you advise me, Mr Speaker, on what we can do to bring the Government to heel on this matter?

[Mr Speaker]

If the Government have anything to say about the report to which the right hon. Gentleman refers, they should say it first to the House of Commons. He is extremely dexterous in his use of parliamentary mechanisms to flag up matters of importance, be they local, national or international, and I do not think that that capacity is likely to desert him in this case. Where a matter is judged to be pressing, there are means by which it can be brought to the Floor of the House. He is well aware of those mechanisms and can deploy them if he so wishes, but this is a serious matter, and although we are pressed for time, I am genuinely grateful to him for drawing to my attention something of which until five minutes ago I was myself unaware.

Shaker Aamer

David Davis Excerpts

Tuesday 17th March 2015 Commons Chamber

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

I am not necessarily sympathetic if there is any question of guilt on the part of the people picked up. However, what strikes me about this case is that the US was offering $5,000 ransoms or rewards, and it is too easy to forget that in Afghanistan at that time, $5,000 would have been equivalent to hundreds of thousands of pounds in this country. When it was a poor village that handed him over, I will not say that I do not blame them—I do—but it could be seen as understandable. What that does, however, is to call into extreme question any suggestion of Shaker Aamer’s guilt.

[John McDonnell]

It looks as though the ransom or reward turned the rounding up of individuals, particularly by the Northern Alliance and others, almost into a trade during that period, and it is easy to see how injustices have resulted.

According to Reprieve, which has been analysing what has been happening in Bagram and elsewhere, while detained in Bagram, Shaker was

“forced to stay awake for nine days straight and denied food. Doused in freezing water, he was made to stand in the Afghan winter on concrete for 16 hours. His feet were beaten and he was bound in torturous positions.”

After Bagram, in 2002, Shaker was among the first to be sent to Guantanamo Bay, where we know that he has endured harsh, brutal and inhuman treatment. That has been exposed by the United States authorities themselves. The CIA’s own torture memos of what happened in Guantanamo—which was authorised, unfortunately—describe

“Enhanced Interrogation Techniques endorsed by Dick Cheney for use in Guantanamo, including, yelling, slapping, stress positions, extremes of heat and cold, constant bright lights, permanent noise and constantly repeated music, food, sleep and sensory deprivation, long periods of total solitary confinement, removal of facial hair, removal of blanket, clothes, toothbrush…forced nudity, and forced feeding, sexual assault, water-boarding and suffocation in a narrow box, prolonged shackling of hands and feet, threats to family, exposure to dogs, insects etc., denial of exercise or daylight.”

We know from the prisoners who have been released so far that that is exactly what Shaker has experienced while being held in Guantanamo Bay. We also know from evidence provided by the United States guards themselves about the performance of those tortures.

Shaker has never been charged with any crime. He has been cleared for release twice but continues to be detained in Guantanamo, while many others have been released, including all the Britons and British residents. Over the past 12 months, 33 prisoners have been released in difficult circumstances. They have been released to host countries from Uruguay to Kazakhstan, which has obviously involved fairly complicated arrangements. It is hard to understand why the United States finds a transfer to the United Kingdom almost impossible; it is extraordinary that David Hicks, who had admitted to terrorist activity, was released to Australia in February, but the United States refuses to release Shaker, who has never been charged and has been cleared for release twice.

Why is Shaker still being detained? That is the question that we are all asking. Why can he not be allowed to come home to his family? We can only speculate. Is it because he knows too much about what happened in Guantanamo Bay and will ensure that the truth comes out if he is released? Is it because he was a spokesperson for the prisoners in Guantanamo when he was setting up the prisoners’ council? Is this part of some vindictive victimisation? Or is it because he can bear witness to the involvement of not just United States but, possibly, British intelligence in the illegal, criminal torture that went on in Bagram, Kandahar and Guantanamo?

The United Kingdom Government have made representations—I thank successive Foreign Secretaries, the Prime Minister and other Ministers for that—but unfortunately, those representations have been to no avail. Shaker’s Member of Parliament, the hon. Member for Battersea (Jane Ellison), who has worked assiduously on his behalf, cannot participate in such debates because of her ministerial position, but she can testify to the representations that the United Kingdom Government have made to the United States Government over the years.

In January, the Prime Minister visited Washington and raised Shaker’s case again with President Obama. The President gave an assurance that the case would be prioritised, but we now know from a recent statement by the United States Defence Secretary that no proposal for release—certainly, no proposal for Shaker’s release—has landed on his desk We also know that there have been discussions within the United States Administration, and possibly with United Kingdom officials previously, about deporting Shaker to Saudi Arabia, where his safety and human rights would certainly be at risk.

There are questions to which I would welcome the Minister’s response. Will he update the House on what further representations have been made by the UK Government to the US Government since January 2015 when the Prime Minister had the meeting with President Obama? What is the Government’s understanding of what continues to block Shaker’s release? It is very difficult to fathom why Shaker has still not been released when the closest ally of the US has made representations and a formal request and when the President of the US has said that the case will be prioritised. It is beyond credibility. Have any grounds or reasons been given for his continued detention? What assurances have the Government been given that Shaker will not be transferred to Saudi Arabia? If possible, will the Minister tell us the next steps that the UK Government plan to take to secure Shaker’s release? Will the UK Government press the US Administration, particularly the President, for a clear timetable for Shaker’s release?

In due course, we will need a full and thorough independent inquiry into Shaker’s evidence about British intelligence collusion. I would welcome the Minister’s views on that proposal. However, the most important thing for us now is to bring Shaker home. As I have said, many words have been spoken by Ministers, Prime Ministers, Foreign Secretaries and now even the President about the release of Shaker, but there has been no action. Now is the time for action, not words. That is why we have secured the debate.

Shaker’s release has now become urgent. As a result of more than a decade of detention and barbaric treatment, including extensive torture, his health has deteriorated significantly. A recent medical assessment by Dr Emily Keram states that Shaker suffers from serious ailments, including migraines, asthma, urinary retention, ear and skin problems and extreme post-traumatic stress disorder as a result of his imprisonment in Guantanamo.

I hope that today’s motion will be supported by everyone. It is very straightforward and states:

“That this House calls on the US Government to release Shaker Aamer from his imprisonment in Guantánamo Bay and to allow him to return to his family in the UK.”

The cross-party group of MPs and Lords supporting Shaker’s campaign for release numbers more than 40 and includes many senior Members of this House and ex-Ministers. It is a sizeable and active group, and we will send a delegation shortly to Washington to meet officials from the Administration over there to press for the release of Shaker. The UK Government can give us help and give this campaign significant support and momentum. I appeal to Members to pass the motion today; let us send a clear and unanimous message to the US President that we want Shaker released and returned to his family.

Shaker’s family members, in particular his sons, have joined us in Parliament today. I want us all to say to them now that we pledge that we will not rest until their father is free and back in the arms of his family.

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

Our legal system and the American legal system are based on a very important principle, the principle of the presumption of innocence. That has not been extended to Shaker Aamer. What is more, in his case, although we are not in a position to make the judgment ourselves, a great deal of evidence, from how he was picked up on the basis of a ransom through to the statements of the US authorities that there is no case against him, shows a probability of innocence, yet this man has faced 13 years in the most unbelievable circumstances.

I make the point about innocence because it is one thing for a terrorist or soldier to be subjected to this sort of behaviour, involving the sort of treatment that the British Government gave up in the early 1970s after using it in Northern Ireland because it was deemed to be torture. In fact, what is going on is much worse than what we gave up and deemed to be torture. However, that is the basis on which Shaker Aamer is being held. The same sort of torture led the American Government to conclude that there were weapons of mass destruction in Iraq, as they tortured someone else 83 times until they eventually said, “Yes, yes, I give in.” That means that, even if there were confessional evidence against Shaker, it would be completely untrustworthy; indeed, it would be thrown out, as Clive Stafford Smith of Reprieve has said. From the point of view of basic humanity, for somebody who is innocent to be put through that is probably 10 times as bad as it is for somebody who is guilty, and it would be bad for them, too.

Our understanding is that Shaker has been a representative in the disputes in Guantanamo, which may make him more of a target. In addition to his own torture, he is said to have witnessed the torture of others, which may be why his release is being withheld. He is the last British resident being held there.

I join the hon. Member for Hayes and Harlington (John McDonnell) in asking the Minister to give an account of the Americans’ explanation of why they have not released Shaker. If they have not done so because he would embarrass them, that represents a doubling up of the guilt on their part. Frankly, this will come out into the open at some point.

The colonel who headed the unit of American military lawyers who both prosecute and defend people in Guantanamo told them at the beginning of their military commission that they should be wary of any techniques and tactics that they allowed to be used, because, in his words, in America there is no such thing as a secret, just deferred disclosure. That is eminently true in the case under discussion. The more rapid that disclosure, the better for every country.

I can understand to some extent why, in the immediate aftermath of 9/11, we dropped the moral standards by which we ought to abide—that was wrong, but understandable. I do not understand, however, the continued attempt to cover things up a dozen and more years later. For that reason, too, Shaker ought to be released.

I do not want to take up too much time, so I will finish by simply saying that the west has had a moral slough of despond after 9/11. We have abandoned our own standards and fallen short of the ethical standards that we should uphold. It is now doubly incumbent on us to act to ensure that those who have suffered as a result are released to their families as rapidly as possible, before their health is completely destroyed, which is what Shaker Aamer faces. It is also important to our own nations and citizens that we confess.

[Kate Hoey (Vauxhall) (Lab)]

What does the right hon. Gentleman think this tells us about the so-called special relationship between the United Kingdom and the United States? When our Prime Minister meets President Obama, it is unbelievable that we cannot get a straight answer about a citizen of our country being held by the US.

[Mr Davis]

It may say two things. The first—it saddens me to say this—is that President Obama may not be in complete control of his own country. After all, he promised to close down Guantanamo early on but then did not do so, at great political cost to himself and, indeed, to his moral standing. Secondly, when it comes down to it, America puts its own interests far ahead of those of any other country. That is the doctrine of American exceptionalism, which in one sense is understandable because it is based on freedom, but in another sense it leads to the almost colonial treatment of its allies. If that is the case, it is deplorable. As America’s longest-standing and strongest ally, we should expect special treatment, but we have clearly not been given it in this case.

[Mr Jim Cunningham (Coventry South) (Lab)]

Looking at the morality of this case, and bearing in mind the fact that America—and Britain, for that matter—have lectured the world on democracy and justice, does the right hon. Gentleman agree that it is not a very good example of American justice to have a person spend 13 years in prison without ever being charged with anything and being tortured? What does that say about the west, given the way in which we look at the rest of the world, and particularly the middle east?

[Mr Davis]

I thank the hon. Gentleman for his intervention, which goes to the heart of what I was about to say in conclusion.

One of the great dimensions of our soft power in the world, which I used to come across all the time as a British Foreign Minister, was the expectation that we would behave differently from others and that we would not fall to the standards of the Soviet Union or of other totalitarian states. We were paid more attention as a result of that. It was less true of America, but it was true none the less. This whole exercise—involving Shaker Aamer, Binyam Mohamed and a whole series of others—shows that we have dropped from those high standards. We have fallen from the grace in which public opinion held us. Indeed, by behaving like the guy in the black hat rather than the guy in the white hat, we have essentially done what al-Qaeda would have liked us to do.

That is why I say that we have a duty to our own citizens in this matter just as much as we have a duty to Shaker Aamer. We are letting our citizens down as well as letting him down. We are betraying the standards that millions died to protect in two world wars over the past century, and we are increasing the risk of terrorism because this situation legitimises the kind of barbarous behaviour that we have seen too much of in the past few years. I shall finish by joining the hon. Member for Hayes and Harlington in asking the Minister to give an undertaking that we will redouble our efforts and not give up until Shaker Aamer is returned to his family.

Iran (UK Foreign Policy)

David Davis Excerpts

Thursday 6th November 2014 Commons Chamber

[Mr Straw]

I wish to reinforce the thanks of all of us to the Backbench Business Committee for agreeing to this debate, and I thank all 15 Members who have spoken in this thoughtful and valuable debate.

There is common ground on the importance of Iran and on Israel’s entirely legitimate concerns, as a small and potentially vulnerable country in the region, to protect its own security—the difference lies in the approach we should adopt towards Iran. When I said we need to be careful what we wish for, I was drawing the attention of those who may take a different view from many of us in this House to the consequences of an antagonistic approach towards Iran. I simply ask those who do adopt that view not to look into the crystal ball but to examine the record of the past 50 years and, indeed, the past 10 years.

The hon. Members for South Norfolk (Mr Bacon) and for Basildon and Billericay (Mr Baron) referred to the offer of a grand bargain with the United States and the co-operation that was actively delivered to us—it was not just offered—by the Khatami Government in the wake of the 9/11 atrocities. It was actions and inactions by the west, particularly the United States, fanned by the right wing in Israel, that led to those offers by the reformists in Iran being rebuffed. The consequence was not that Iran disappeared or that the possibility of Iran building up a nuclear weapons capability disappeared, but that Iran became more difficult to deal with, more belligerent and disruptive in the region, and its 200 centrifuges increased to 18,800. So please let nobody here believe that if there is no deal because of pressure from parts of US and parts of the Israeli governmental elite, that would lead to a status quo or, madly, to attacks on Iran. What it will lead to, in the judgment of many of us here, is an increase in enrichment capabilities and an empowering of precisely those elements inside the governmental system of Iran whom we do not wish to see empowered. There will also be more difficulties on human rights.

I understand, of course, that there are risks on both sides, but I hope that the Minister, whom I thank for his thoughtful contribution, will take away from this debate the point that many of us who took part in it—both Government and Opposition Members—believe that there are risks worth taking in these negotiations, because the benefits of a respectful deal on this nuclear dossier will extend far beyond nuclear and will far outweigh the risks.

Question put and agreed to.

Resolved,

That this House has considered UK foreign policy towards Iran.

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

On a point of order, Madam Deputy Speaker. I apologise for interrupting the business of the House, but a story that amounts to a national scandal broke this morning in a public hearing of the Investigatory Powers Tribunal. It has long been taken as a standard in this country that the relationship between a lawyer and a client is protected by privilege, and that communications between them are protected from intervention by the state. What has become clear this morning is not only that that is not case at the moment, but that each of the three agencies has policies for handling legally protected material, and in one case for deliberately withholding that material, even from secret courts and security-cleared special advocates. My question to you, Madam Deputy Speaker, is how do we deal with that? Have the Government approached you requesting to come to this House to explain precisely how this came about?

[Madam Deputy Speaker (Mrs Eleanor Laing)]

The right hon. Gentleman has made his point eloquently and decisively as ever. The House will be aware that it is not a matter for immediate action by the Chair, so I cannot give him advice except to say that I have had no notice of anyone wishing to come to the House to explain the matter further. The matter of privilege is one of very great importance to this House and to this Parliament, and I am sure that what the right hon. Gentleman has said will be noted by those who ought to note it.

Before we come to the next business, I reassure the House that the strange and unusual noises that interrupted some of the previous debate were due to some kind of building works, and that those who look after facilities in the House have now stopped the noises. I have made the House’s displeasure known to those who look after facilities. [Interruption.] I am grateful to the House for support in that matter.

Ukraine

David Davis Excerpts

Tuesday 4th March 2014 Commons Chamber

[Mr Hague]

We have had no indications from France about that matter. As the hon. Lady will have gathered, there will be further extensive meetings, including between the European Heads of Government at the European Council on Thursday. Arms export licences will, of course, be one of the issues that European nations have to consider. It is important that we consider them together and have a united approach, but we must examine that issue.

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

To pick up on the Foreign Secretary’s last point, the implication of what he has said is that if the Russians continue with their current strategy, there will be targeted sanctions against Russia from the EU, NATO and the US. Russia will respond by retaliating against individual countries to try to fracture the unity of that policy. Is he confident that he can maintain the unity of that policy in the long run, and what action is he taking to make sure of that?

[Mr Hague]

As my right hon. Friend will have noticed, I have stressed several times the importance of unity among the western nations, including in the European Union; the importance of any measures being well judged and well targeted; and the importance of any measures being legally sustainable. That is why these matters require calm and careful consideration, rather than quick unilateral announcements by this country or any other member state of the EU.

GCHQ

David Davis Excerpts

Monday 10th June 2013 Commons Chamber

[Mr Hague]

I am grateful to the right hon. Gentleman and pleased that he began his remarks by expressing the support and admiration across the House for the work of the intelligence agencies. Many former Ministers from the previous Government—indeed, there are some specific ones here today—know that well. He was right to say that the work of those agencies is among the most important and least recognised that goes into protecting this country, so there is strong common ground across the House on that.

The right hon. Gentleman said that we should be able, now and in future, to give people assurances about the law-abiding nature of the work of the agencies, which of course is a large part of the purpose of what I have just explained to the House. I am not saying that the agencies, anyone who works in them or, indeed, Ministers are incapable of error—that can happen in any organisation—but I am arguing that there is a strong system of checks and balances. A combination of ministerial oversight, independent scrutiny, parliamentary oversight, the legal framework and the strong ethical framework of the agencies themselves minimises the chance of errors happening in any sinister way.

Sometimes people can get the impression, when reading discussions in the media about this, that there is a danger of a “deep state” that is in some way out of control. There is not that danger in the United Kingdom. Of course everyone is capable of error, but the protection of this country’s citizens from such error is very strong indeed. I must stress that there will always be ways of improving procedures—many improvements have been made in recent years, under successive Administrations—and there are always new situations that arise in intelligence gathering that require additions to or the refinement of the legal basis of what we do and the practices and procedures by which we do that work. I do not argue at all that everything is definitely perfect, and certainly not for all time, with regard to whether in future there could be any improvements in procedures in some areas, because I am sure that there could be. The Intelligence and Security Committee will be able to look at that and make recommendations if it so wishes, and of course within the Government that is something that is constantly looked at and subject to change.

The right hon. Gentleman is right that there is no reason why the general public would be familiar with the framework I have set out for the House. I was the first Foreign Secretary to make a speech, in November 2011—it might have been widely unnoticed in the House—about the role of secret intelligence in foreign policy, in which I set out for the public what the guarantees are and what the legal framework is. This, in a way, is an opportunity to set that out clearly to the country.

The right hon. Gentleman was right to say that he supports information sharing with our allies. The position on the legal framework is exactly as I set out in my statement: any data obtained by us from the United States about UK nationals are subject to the full range of Acts, including section 3 of the Intelligence Services Act 1994 and the RIPA provisions, set out in sections 15 and 16, which regulate that information gathering must be necessary and proportionate and regulate how the agencies must handle information when they obtain it.

On the right hon. Gentleman’s further questions about how authority is given, I cannot give him, for reasons that I cannot explain in public, as detailed an answer as he would like. I would love to give him what could actually be a very helpful answer, but because circumstances and procedures vary according to the situation, I do not want to give a categorical answer—in a small respect circumstances might differ occasionally. But I can say that ministerial oversight and independent scrutiny is there, and there is scrutiny of the ISC in all these situations, so, again, the idea that operations are carried out without ministerial oversight, somehow getting around UK law, is mistaken. I am afraid that I cannot be more specific than that.

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

Nobody in this House, and certainly not me, would dispute the value of well-targeted intelligence. Central to this issue are the US FISA—Foreign Intelligence Surveillance Act—laws, which distinguish between American citizens, who receive rigorous protection of their privacy, and all other foreigners, including British citizens, who receive, in essence, no protection. When the Americans are concerned about assaults on their citizens, they pursue this with an aggression that would make Lord Palmerston proud, most obviously through the extradition arrangements, for example. Has the Foreign Secretary made any representations to the American authorities about the protection of innocent British citizens’ privacy under their FISA laws?

[Mr Hague]

We apply our own laws. The United States decides its own laws and applies its own laws in the United States. We do so in the United Kingdom as well. That is the central point that I am making about this. All the Acts that we have passed in this Parliament relating to the gathering of intelligence are applied to data supplied from other countries. While I cannot give my right hon. Friend a specific answer about specific discussions, of course we regularly discuss with the United States the framework for these things to make sure, as best we can, that our values and our legal frameworks are upheld and that the strong emphasis on the privacy of the citizen is always there. As he will have seen in the statements of President Obama, the United States is very, very tough about that as well. When the UK and US both work together, each with a strong legal framework, the combined effect is a very strong and protective one.

Foreign Secret Intelligence and State Secrets Privilege

David Davis Excerpts

Tuesday 27th March 2012 Commons Chamber

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

Thank you, Mr Speaker, for granting this debate.

The story I am about to tell is extraordinarily dramatic. Frankly, had I not been able to verify some of the hard facts for myself, I would not have believed it. Essentially, the story is of an intelligence-gathering operation that, had it gone ahead, would very likely have yielded advance information about the 9/11 attack in New York. The operation was delayed by what can only be described as a turf war between American intelligence agencies, and as a result the intelligence opportunity was lost.

The American Government then used the state secrets privilege to cover up that embarrassment, and did so in such a heavy-handed way that it facilitated the defrauding of some British citizens of millions of pounds. This is the same state secrets privilege, and the same American Government, that the British Green Paper on justice and security is designed to protect. The case I am about to describe will show how intelligence agencies misuse these laws not to protect our security, but to avoid their own embarrassment and, sometimes, to cover up criminal activity.

In the mid-1990s, Afghanistan, a country of almost 30 million people, had fewer than 10,000 working telephones. There was no mobile phone network and no internet, and ordinary Afghans had to queue for hours to use the few functioning public phone boxes. The country had even lost its international dialling code. In 1998, the Taliban Government decided Afghanistan needed a new phone network. As no domestic companies had the necessary expertise, they invited foreign companies to bid for the rights to build the network. The company they chose was called Telephone Systems International.

Based in New Jersey, TSI was owned by one Ehsanollah Bayat, a Kabul-born American citizen on friendly terms with the highest echelons of the Taliban Government, and particularly its leader, Mullah Omar. Helped by Mr Bayat’s powerful connections, TSI was awarded the exclusive licence to build and operate Afghanistan’s new telephone network, including domestic, international, mobile and landline calls.

Mr Bayat had a problem: he had the connections, the funding and the exclusive contract, but he had no telecommunications expertise. He needed expert advice and operational skills, and sought it from two British citizens. One was Stuart Bentham, a former officer in the Corps of Royal Engineers. The other was Lord Michael Cecil. Between them, Bentham and Cecil had built new mobile phone networks in Kenya, Uzbekistan and Tajikistan, and Bayat wanted them both on board. In 1998, they struck a deal under which Bentham and Cecil would each receive shares in TSI, amounting to about 30% of the company, in exchange for overseeing the building of the Afghan mobile network.

So far, so ordinary, you might think, except that Mr Bayat was no ordinary telecoms entrepreneur. Cecil and Bentham knew his secret, but at this point the Taliban had no idea that the man they had asked to build their phone network was an FBI informer. With their man now in charge of Afghan telecoms, the FBI saw a once-in-a-lifetime opportunity to gather intelligence on the Taliban and, of course, al-Qaeda.

The plan was simple: the Taliban wanted American equipment for their new phone network, so the FBI and NSA—the National Security Agency—would build extra circuits into all the equipment before it was flown out to Afghanistan for use. Once installed, these extra circuits would allow the FBI to record or listen live to every single landline and mobile phone call in Afghanistan. The FBI would know the time the call was made and its duration, the caller’s name, the number dialled, and even the caller’s PIN. The FBI would also be able to monitor the telephone gateways channelling international calls in and out of the country—gateways already being used by Bin Laden, Mullah Omar and their associates, thanks to the satellite phones given by Mr Bayat to Taliban Ministers as gifts.

The FBI gave the operation the codename Operation Foxden. Encouraged by a supportive Taliban Administration and eager American intelligence agencies, work on the new Afghan phone network began in earnest in 1999. Early progress was good, until suddenly, on independence day in 1999, the Clinton Administration imposed trade sanctions on Afghanistan and banned American citizens from doing business with the Taliban Government. For months, TSI had been legally exporting telecoms equipment to Afghanistan. Overnight, this activity had become a serious criminal offence. Construction of the Afghan phone network was delayed, as was the opportunity for the FBI to eavesdrop on the Taliban’s and al-Qaeda’s conversations.

In the meantime, the American security services continued to discuss the project. In December 1999 and January 2000, Stuart Bentham and Lord Cecil flew to the US for meetings with officials from the FBI and NSA. Both agencies remained convinced that building and tapping the Afghan phone network from the ground up was a massive intelligence opportunity. The NSA even provided $30 million of funding, and offered technical support, cover stories and fake passports to TSI employees to help get the job done.

In January 2000, Mr Bayat and his team were gradually finding a way to work around the sanctions and the limitations placed on them, and he made plans to fly to Afghanistan to get construction moving. According to a TSI technical expert who was on the ground in Kabul at the time, the new phone network could and would have been up and running in months. But the CIA had become aware of the project and had decided it could continue only under its control. Thus started a turf war that set the project back by some 20 months. Instead of getting the Afghan phone network built and starting to eavesdrop on Taliban leaders and al-Qaeda leaders, officials from the FBI and CIA spent more than a year and a half fighting over who should be in charge. Furthermore, when it was decided that the FBI should hand control of the project to the CIA, the CIA’s near east division and counter-terrorism centre then proceeded to bicker among themselves over which of the subsets of the CIA should run the operation.

Eventually the bickering stopped and finally, 20 months after the project had been put on hold, TSI was given the green light to resume building Afghanistan’s phone network. Within days, and with MI6’s blessing, Bayat’s British advisers, Bentham and Cecil, met CIA officials and technical experts at the Sheraton hotel, New Jersey. There they discussed future plans, Afghan satellite capacity and the possibility of more American funding. The project seemed to be back on track, but it was too little, too late. The Sheraton meeting, held in a room overlooking the World Trade Centre, took place on 8 September 2001. Three days later, while Bentham and Cecil were travelling by taxi from Heathrow to Matrix Chambers to get advice on the legality of their operation from Ken Macdonald QC, they heard on the radio the terrible news of the destruction of the twin towers of the World Trade Centre.

Of course, we cannot say for certain that if US intelligence agencies had managed to tap the Afghan phone network sooner, we would have intercepted evidence in time to stop the 9/11 attacks, but it seems quite likely. After all, there was clearly a good deal of related activity in Afghanistan immediately prior to 9/11. Northern Alliance leader Ahmad Shah Massoud was assassinated two days before the 9/11 attacks, clearly to a timetable and clearly in a move to take out a potential US proxy against al-Qaeda and the Taliban. It is probable that there was telecoms traffic relating to that, if not to the 9/11 attack itself. In addition, Massoud had told the European Parliament only that summer to expect a massive “spectacular” attack against the west in the near future, presaging the 9/11 attack.

So it looks as if a huge opportunity was missed, but that is only half the story.

[Jim Shannon (Strangford) (DUP)]

rose—

[Mr Davis]

I am sorry, but I shall not give way. I hope that the hon. Gentleman does not mind, but I am sticking to a very narrow script on this occasion.

By early 2002, coalition forces had toppled the Taliban and controlled most of the country. In April, the new Afghan phone network, which now connected all the major Afghan cities, was officially launched, with Hamid Karzai making the first official telephone call. The project had been a belated success and was then very profitable indeed. As agreed at the outset, Mr Bayat gave shares in TSI to Cecil and Bentham, the two British men whose advice had helped him get the Afghan phone network off the ground. In May 2002, a declaration by the American Federal Communications Commission in Washington confirmed that, showing that Cecil and Bentham each owned 15% of the shares in TSI, with Bayat owning 51%. However, not long afterwards Bayat changed his tune. He first offered to buy out Cecil and Bentham for derisory sums, then denied that they were entitled to any shares at all. That “Bayat” is an Arabic term for an oath of honour must have seemed a cruel irony.

For months the dispute continued, eventually ending up in the New York southern district court, where Bentham and Cecil claimed the value of the shares they had been promised and Mr Bayat accused the British men of fraud, deceit and conspiracy. “So what?” one might think. After all, commercial squabbles between former business partners happen every hour of every day in courts around the entire world.

--- Later in debate ---

Motion made, and Question proposed, That this House do now adjourn.—(Mr Newmark.)

[Mr Davis]

I think the moment of interruption became a moment of terror for me then, Mr Speaker.

I was saying that the commercial squabbles between Mr Bentham, Mr Cecil and Mr Bayat might be viewed as ordinary, but this was no ordinary case. The US intelligence agencies feared the consequences if the truth about their in-fighting emerged and they were determined to stop that truth emerging.

First, it emerged that the CIA had offered Bayat $1 million for his legal fight against Bentham and Cecil. Other evidence suggests that there was a general intent by the CIA to exclude British agencies from the operation, and this may reflect that. Secondly, when Bentham and Cecil’s lawyers pressed the case, CIA officers threatened them, warning that the whole case would be shut down if they continued. Then, in November 2003, a year after litigation began, the American judge suddenly sealed the case, shutting it down without warning, citing the state secrets privilege. All records of the case were expunged, and vanished from the court’s public database. Cecil and Bentham were warned that they must destroy any documents in their possession that related to the case and that they would be in contempt of court if they discussed the case with anyone other than two named American lawyers.

Bentham and Cecil appealed, but this was quickly dismissed, with the decision being explained in a judgment that they were not even allowed to see for themselves. Undeterred, two years ago they returned to London and brought proceedings in London. However, so long is the reach of the American state secrets privilege that Bentham and Cecil were banned from discussing in the English High Court key facts and details of the American litigation. Needless to say, because of that their claim failed.

They realised then the unspeakable truth about which Parliament has until now been kept in the dark—that through heavy-handed use of the state secrets privilege, US agencies can dictate what British judges in British courts are entitled to know and how much British citizens in British courts are entitled to say. I am not here to pass judgment on the merits of Bentham and Cecil’s claim. Without having seen all the evidence I could not hope to come to a fair and accurate judgment, but the same goes for our judges. What chance did Bentham and Cecil or anyone else in a similar position have of getting a fair hearing when the American intelligence agencies can shut down cases without explanation in the US and use the state secrets privilege to control what evidence courts can see in the UK?

When this shocking story was first raised with me six months ago I was very cautious about how to handle it given the sensitivity of the information concerned—the people involved and the techniques used are the kind of thing I tend not to talk about in public—but I feel justified in raising these issues in Parliament today not just because of what this case reveals about the implications of the US state secrets privilege for British justice, but because when an American magazine published the story back in September last year, an advance copy of the article was sent for comment to the CIA as a matter of courtesy. All Governments have ways of restraining newspapers and journals from publishing matters that might jeopardise national security. We use the defence notice, or the defence advisory notice as I think it now is, procedure, and the Americans use other procedures. In this case, however, no attempt was made by the CIA or anyone else to restrict publication of a journal that goes out to millions of readers. No attempt was made to keep this supposedly sensitive information under wraps.

When one considers how heavy-handed the use of state secrets privilege was in respect of Bentham and Cecil, that is astonishing—so astonishing, in fact, that I recently put the question to someone in the know in one of the agencies involved. I asked him, “Why was this not shut down at this stage?” His response was, “Ten years have passed since 9/11, and the culpable people have moved on, so it’s no longer embarrassing.”

This demonstrates only too clearly that although the aim of the American state secrets privilege is to protect national security, in practice it is often used to eliminate embarrassment—political, bureaucratic, organisational or individual embarrassment at past failures. This has been proven to be true of the state secrets privilege from its very first use in the Reynolds case in the 1950s, and it is clearly still true today. It also shows how giving a Government agency an absolute right to secrecy encourages bad behaviour. The American agencies could easily have stopped the defrauding of British citizens without the matter going to court, given their enormous leverage in the matter. Instead, they chose to suppress justice.

I understand that both the Foreign Secretary and the Prime Minister have been aware of the issue for some months. I have three questions, at this point for the Minister, but in due course for them. First, what do the Government intend to do about British citizens being defrauded of millions of pounds in this way and denied justice, with the collusion of United States Government agencies? Have the Government been in discussion with the American Government to correct this injustice? How will they prevent this happening again and being covered up in the same way again?

Secondly, in the light of previous revelations about the UK Government’s complicity in torture and rendition of detainees to locations such as Libya and Afghanistan, or illegally into American hands—an area by definition covered by state secrets privilege—how will the Government prevent the Justice and Security Green Paper proposals being misused in a similar way to cover up illegal acts and embarrassments, rather than to protect national security, which is their supposed aim, particularly when one considers that the Government’s Green Paper proposals are more draconian than the American state secrets privilege, because we do not have the constitutional protection of free speech which occasionally stops state secrets privilege being misused in the States?

Thirdly and finally, can the Minister tell the House whether there is a formal, statutory, reciprocal arrangement to our proposed closed procedures with the American courts? Will we get complete protection—the control principle for our intelligence data given to the Americans, of which there is a great deal—in exchange for the apparently absolute protection that we are giving to American intelligence being disclosed here? Will we have the same level of protection? I suspect that the answer is not the one that the Minister would like to be able to give.

This has been an extraordinary case, which has come to my attention in the past six months. It happens, by accident almost, to crystallise the issues that arise when the inevitably secret agencies of the state are given not just the normal secrecy that is extended to them to allow them to do their job, but secrecy and protection from the proper operation of the justice system in a mature democracy. I would like to hear the Minister, who I know shares many of my liberal values, tell us exactly how he intends to reflect those liberal values in the policies in the year ahead.

[The Minister of State, Foreign and Commonwealth Office (Mr Jeremy Browne)]

Thank you, Mr. Deputy Speaker, for giving me the opportunity to make the final speech—at your discretion—before we adjourn for Easter. I congratulate my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) on securing this debate and on the compelling way in which he laid out his case this evening. I recognise the strength of feeling and sincerity with which he raises this specific case and the wider associated issues it serves to illuminate. I will aim to do justice to the three questions he put to me at the conclusion of his speech, but first I would like to give some context for my answers.

The security agencies play a vital role. They gather intelligence to protect our national security, with particular reference to the Government's defence and foreign policies, in the interests of the UK's economic well-being, and to prevent or detect serious crime. They provide warning of states taking actions hostile to UK interests, or planning such actions. They disrupt terrorism plots. Intelligence disrupts counterfeiting, drug trafficking and other serious offences, and intelligence can provide information on the intentions and capability of hostile state or non-state actors to launch cyber attacks against UK networks.

The agencies conduct their activities in compliance with the law and in a manner consistent with our values. Agency personnel devote considerable time and effort to ensuring that this is the case, and a system of oversight exists. That oversight includes the invaluable work of the Intelligence and Security Committee, composed of parliamentarians drawn from both Houses of Parliament and of two former High Court judges, who act as independent commissioners.

As my right hon. Friend said, the Government published a Green Paper on this issue in October 2011. In doing so, and in considering now the responses, this Government were, are and always will be guided by respect for fundamental rights to justice and fairness. It is always right that the Government should be held properly to account. The Green Paper's proposals will enable better scrutiny, which is a vital element in a healthy democracy.

Let me say a word about foreign intelligence. Threats to our security cross borders. We cannot confront them on our own, neither can we do it without co-operating with intelligence partners on the basis of trust. We rarely have all the pieces of the intelligence picture, and we must analyse the information we have alongside that we receive from our partners to create the fullest possible picture of the threats to our national security.

The ability of other countries to share intelligence with us without fear that we will have to disclose it is absolutely vital to our national interest. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) made that point eloquently in a newspaper article this morning. If we cannot uphold the control principle—the rule that any further use of intelligence requires the agreement of the agency that provided it—and others do not share information with us as a consequence, we incur very real risks to our security. No responsible Government should willingly run such risks. We expect, and demand, the same protection for the intelligence we share with our overseas partners as we offer to those who have shared their information with us. However, under the current legal framework, sensitive material may have to be disclosed in civil proceedings, putting at risk the vital overseas relationships we depend on, as well as sensitive techniques and the lives and safety of individuals.

The Government aim to achieve in any new legislation a system in which there is justice and accountability, in which secret material is protected as it should be in all our interests for the reasons I have just explained, and there is fairness for all parties. We seek to balance all those laudable objectives, including a system where there is justice and accountability.

The Green Paper sets out proposals for handling sensitive material in civil proceedings, including the introduction of closed material procedures. At the same time, it proposed strengthening oversight of the activity of the agencies. Some 90 submissions were received in response to the consultation, of which Ministers will take account when making decisions on the measures to be introduced. I will not prejudge those decisions here.

Let me turn to the questions that my right hon. Friend posed at the end of his speech. On the specific case he raises, what I can say is that the Government are aware of the case, as he has said. We will continue to look into the matter and will decide how to respond to the representations already made on behalf of Mr Bentham and Lord Cecil in due course, and my right hon. Friend’s contribution to our deliberations this evening will of course form part of those considerations.

My right hon. Friend’s second question goes to the nub of the issue, and I can speak to the House at greater length on this broader principle. How do we ensure that new arrangements apply to only the most sensitive material and are not used, as he put it, “to cover up illegal acts and embarrassments”? Ministers will consider that carefully, but I can assure him now that this is not about covering up embarrassment. It is about facilitating the work of the courts by enabling them to look at all relevant material while giving the most sensitive material proper protection. It is about putting more information before the courts than is currently possible for the very small number of cases where sensitive material is centrally relevant. The court would play a critical role and would simply not accept Government justifications for public interest that it considered were made only for the purposes of hiding embarrassment or seeking to cover up unlawful conduct. The circumstances in which a closed material procedure might be necessary are exceptional and rare. They are not wide in scope. Sensitive information is central to a very small number of cases currently before the United Kingdom courts.

On my right hon. Friend’s final question, I am told that, in the United States, Executive Order 13526 provides for the classification and protection of information where

“the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defence against transnational terrorism”.

With regard to foreign Government information, the order explicitly states:

“The unauthorized disclosure of foreign government information is presumed to cause damage to the national security.”

[Mr David Davis]

I simply wish to make one point and ask that the Minister takes it back to his Department. In The New York Times v. the United States in 1971 the point about the disclosure of foreign information was advanced as one of the Nixon Government’s attempts to stop the Pentagon papers being published. It was rejected by the court on constitutional grounds, and constitutional lawyers have said that the Executive Order makes no difference to that and cannot transcend the constitution. I ask that his Department, in its approach to the Green Paper, makes it clear that there is not that absolute rejoinder the other way, because it is very important that we understand that we are at equal arms with our ally.

[Mr Browne]

I am grateful for that intervention, because it is obviously in our interests that there is reciprocal sharing of information with the United States and a clear understanding of the status of that information. I will certainly draw my right hon. Friend’s comments to the attention of people within the Foreign and Commonwealth Office so that they can consider them in any further submissions made by the Department.

The Government are committed to safeguarding national security. Drawing on our society’s fundamental values, we are also pledged to protect the liberties and way of life of our citizens. Those aims—protecting our national security and liberty and way of life of our citizens—need not be in conflict.

Middle East and North Africa

David Davis Excerpts

Tuesday 26th April 2011 Commons Chamber

[Mr Hague]

The right hon. Lady is absolutely right about cluster munitions—and we might add land mines as well; there are reports of the Gaddafi forces laying them in the vicinity of Misrata. I am certainly not aware of any use of depleted uranium weapons. I would be very surprised if any such weapons were being used, and I think I can give her the assurance she seeks.

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

It has been reported that NATO intelligence believes that some 450 of Gaddafi’s mercenary army are in fact Algerian-backed Polisario guerrillas paid for to the tune of some millions of dollars. Has the Foreign Secretary taken this matter up with the Algerian Government, and can he tell the House what we have done, beyond the freezing of British, European and American bank accounts, to deny access to the money that enables this sort of action to take place?