Wilson Doctrine

David Davis Excerpts

Monday 19th October 2015 Commons Chamber

[Chris Bryant]

That was a helpful intervention. In the official guidance, due consideration is given to lawyers in regard to privileged material. Due regard, as provided for in the European convention on human rights, is given to journalists and the protection of their sources. The guidance includes doctors, but it also refers to ministers of religion, and I have some anxiety about the direction we may be taking. There is a perfectly legitimate debate to be had about what separate categories there might be. I am glad that the Committee will look at precisely how MPs—and, I presume, other parliamentarians —will be treated in the draft Bill, which we will need plenty of time to consider. Last year, we had one day in the House to consider some of the most important matters of personal freedom and liberty, which was wholly inappropriate. The clock is ticking on the High Court ruling, which the right hon. Member for Haltemprice and Howden won earlier this year, so I hope that the Government will move speedily with their draft Bill.

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

The shadow Leader of the House is telegraphing that the Opposition will support an amendment to the upcoming legislation to provide that protection of privilege. He should be aware that the revelations on the Wilson doctrine were preceded by serious breaches of the legal privilege protection, and—this has changed in the past decade, because I spoke to the previous Home Secretary about the matter—that intercepted communications between the legal representative and the suspect, as it were, are now recorded and given to lawyers who may prosecute that suspect. That is a serious breach of what is known as equality of arms in natural justice.

[Chris Bryant]

The right hon. Gentleman is correct. He does not need to intercept this communication; I am not only telegraphing, but semaphoring and using every other means of communicating to the House, that there should be a proper debate about the several categories of people that might benefit, in the interests of national security and a wider democratic interest, from a specific provision in law.

There is a separate debate to be had about whether all warrants, as Anderson suggests, should go through a judicial process anyway. In particular, the right hon. Gentleman is right that the European convention on human rights makes specific provision for legal privilege so that lawyers are able to guarantee a fair and proper hearing for a defendant, but that has been breached in the past. Moreover, if we want to guarantee a free press, there must be provisions for journalists.

We cannot have a proper debate, however, unless draft legislation is produced in sufficient time for the House to be able to consider all the issues in the round before the process of tabling amendments begins. I very much hope that the Home Secretary will come forward early and not leave things to the very last minute, as she did last year.

Secondly, it is time that we abandoned our reliance on the doctrine in favour of statute law. Apparent ambiguities in the Wilson doctrine need to be clarified. A sensible course needs to be drawn that guarantees the independence of Parliament, but ensures our national security. We argue that this can be done only through legislation and we stand ready to work with the Home Secretary on this. As I said, she has to come back by the end of March with a new Bill to replace the Data Retention and Investigatory Powers Act 2014, given the High Court ruling, but I earnestly hope that she will introduce new draft legislation in the forthcoming weeks.

Thirdly, it is our contention that the new legislation should apply to all parliamentarians: Members of the House of Commons; Members of the House of Lords, although not necessarily all peers; Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly; and UK Members of the European Parliament, although obviously not all Members of the European Parliament.

--- Later in debate ---

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

Before I start on the substantive argument, which is fairly simple, I will say one thing to the House. Those who are interested in this matter should look not just at the judgment that was handed down by the Investigatory Powers Tribunal, but at the transcript of the hearing.

I attended part of the public session. It was an illuminating process and did not necessarily give one much confidence. As the House will know, I have been involved in this subject for many years and am loth to criticise courts, but I was not impressed by the IPT’s understanding of the technology that is available to the agencies to enable them to sift and limit the damage that is done by their intrusion of privacy. To me, that seemed rather important.

Secondly, it is apparent that the ruling means something very specific. It means that the inquiry that was brought by Baroness Jones, George Galloway and the hon. Member for Brighton, Pavilion (Caroline Lucas) is very unlikely to receive an answer because if something is not illegal, they will not be told about it. That is the rule. The hon. Lady will not be told whether something has happened. She will be told only if something illegal has been done. One of the outcomes of this situation is that it will prevent her or any of the complainants getting an answer.

James Eadie, the very skilful lawyer who argued on behalf of the Government, made the point that the Wilson doctrine has no legal basis whatever, is not practical—that is why the tribunal’s lack of understanding was very important—and, therefore, is not binding on the agencies. That is a really serious finding. He spent the best part of two days in incredibly convoluted argument. The only inference that I can draw from the incredible effort he put into getting this outcome is that they had something to hide and that what was happening in secret was a statement that the hon. Member for Brighton, Pavilion or one of the other two complainants had been intercepted.

In the course of the exchanges with the judges, James Eadie was very illuminating on the attitude to this matter. He said, in effect, that if the Prime Minister had come to the House and explained the truth of the matter, post-RIPA, he would have been committing an

“act of political hara-kiri, or something quite close to it.”

That was the attitude of the tribunal to the Wilson doctrine.

[Mark Field (Cities of London and Westminster) (Con)]

I accept what my right hon. Friend has said, but is not one concern that the Wilson doctrine is 50 years old? It was written in a very different world, before the internet. He has drawn various conclusions from what was said, such as that the Government had something to hide. It might simply have been that the Government recognised that the legislative process, which we are updating, was not fit for the purpose of a modern-day Wilson doctrine.

[Mr Davis]

I take my right hon. Friend’s point, but that is why I urged Members to read the transcript. What I said is very apparent from the transcript. He is, of course, right that there has been a huge transformation. Metadata, which I will come back to later, simply did not exist in their current form in Wilson’s day. Many of the things that are now available, including email, did not exist in his day. A whole series of things that we all assumed had been swept up in the Wilson doctrine have not been swept up in the Wilson doctrine. That is why the Home Secretary’s case that it is the same as what was enunciated by Harold Wilson all those years ago is simply not tenable. I will come back to that point, too.

Members will notice that the Press Gallery is nearly empty. Over the past week or so, the newspapers have been very derogatory about this case and the argument that we are putting. They say, “Why should MPs be treated any differently from anybody else?” Those, by the way, are the very same newspapers that were in an uproar of anger about the fact that somebody had checked out the metadata of one of their journalist’s telephones. Perhaps they were right in that, but it is an odd dichotomy.

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

What does my right hon. Friend think the deputy leader of the Labour party will think about the stance that has been taken by the shadow Leader of the House, given that the deputy leader of the Labour party is making a career out of exposing the alleged wrongdoings of Members of this House and the other place? Presumably that would be made much more difficult were we exempted from the investigatory instruments that are available to the agencies.

[Mr Davis]

My hon. Friend tempts me, but the inwardness of the Labour party is far above my pay grade. I will stick to the substance of the issue before us.

[Chris Bryant]

I can confirm that the deputy leader of the Labour party is perfectly content with the policy that we are arguing for. Indeed, he is the person who got the Home Secretary to confirm for the first time that she had changed the Wilson doctrine.

[Mr Davis]

I will return to the subject of the debate.

The answer to those journalists, commentators and editors who think that this is about the House getting above itself, or that in some sense it is not important, is simple: we should not tolerate the Government intercepting or interfering in any way with any of our communications—there is one tiny exception that I shall return to—because MPs are the people who are charged with holding the Government to account. We forget this line from time to time in the sort of schoolboy antics that pass for the reporting of Parliament in this day and age, but we are the ones who hold the Government to account. In doing so, we deal with campaigners, journalists, whistleblowers, other MPs and, of course, our constituents. The text of the judgment states that the only protected component is our constituents, and although they are incredibly important, in some ways they are the least salient of the components that we deal with.

The Home Secretary, quite properly, reminds the House of the demands of national security. She is right to do that because 58 people have died owing to terrorism within the United Kingdom since 2000, and the figure is about 90 if we include those in Tunisia and elsewhere. Security is a serious issue, but so are matters that are brought to our attention by whistleblowers. Mid Staffs occurred because whistleblowers were supressed or ignored—the same effect that we get by diluting the Wilson doctrine. How many people died unnecessarily at Mid Staffs? It was 1,200. We must not forget that whistleblowers are incredibly important and they would, or will, be supressed by what is seen as the demise of the Wilson doctrine.

Let us consider the possible cases. A police officer calls an MP about corruption, but he might be intercepted by other police officers. A prisoner calls his MP about ill treatment in prison, but he might be intercepted and recorded by other prison officers. A tax official calls the Chair of the Public Accounts Committee about sweetheart deals on tax with big companies and Parliament being lied to—hon. Members might begin to realise that these are real cases—but that person might have his life destroyed because of activities under RIPA. Imagine an official from the Ministry of Defence telling an MP about the mistreatment of a prisoner by the British Army, or an immigration officer telling a shadow Home Secretary about Government deceiving Parliament—that case led to the arrest of one of our colleagues, my right hon. Friend the Member for Ashford (Damian Green), some time ago. The absence, failure or demise of the Wilson doctrine would undermine or deter all those cases.

The Home Secretary has a difficult task, because technology is changing under our feet and has been doing so for decades. The difficulty today is that the Wilson doctrine that most people believed was in place is not. The idea that all our communications are protected is untrue for a number of reasons. I cannot find the first reference—I think it was Gordon Brown, but it might have been earlier—but one Prime Minister limited such protection to cases with a warrant from a Secretary of State. Before then it was not limited in such terms. Let us understand what a limitation that is. The report on surveillance by David Anderson, the Independent Reviewer of Terrorism Legislation, points out that there are more than 65 different statutory mechanisms for initiating intercepts and other sorts of communication surveillance. Very few of those require a warrant from the Secretary of State. It is a very narrow protection.

[Mr Peter Bone (Wellingborough) (Con)]

I have reviewed 27 written parliamentary answers on this subject from the last few years. Most tell us absolutely nothing, but those that do have added the words “Secretary of State’s warrant” to give the impression that something is happening when it is not.

[Mr Davis]

My hon. Friend is exactly right and that leads me to a case that the previous Justice Secretary brought before the House when it was plain that there had been interception and recording of telephone communications between prisoners and their Members of Parliament as a matter of course. As I have said, that could lead to serious outcomes for those prisoners. The Justice Secretary was able to tell the House that the matter was not subject to the Wilson doctrine because it was not subject to a Secretary of State’s warrant.

Many of those parliamentary questions were also about the wider ramifications of the doctrine, particularly with respect to metadata. It took the Government approximately nine months to answer my question about whether metadata were involved. They told another colleague who is no longer with us—Nick de Bois—that metadata were not included, but when I challenged them it took them nine months to come to a conclusion. The collection of metadata cripples whistleblowers, because it tells us precisely who has talked to whom, when and where. Metadata tracking led to the arrest of my right hon. Friend the Member for Ashford. That area is material to the operation of our holding the Government to account.

The House should be unsurprised that agencies use their powers to the limit. If I were working for MI5, MI6 or GCHQ, I would use every power that I was given to the limit, just as I would if I were a policeman. If I am charged with the security of the state, of individuals and of safety, that will be what I am concerned about, but that is precisely why we must be careful about controlling what people do. The tendency is to stretch the limits or for those limits gradually to move.

The IPT judgment is not the first to have shown agencies moving the goalposts. The most obvious example of breaches by police and agencies concerns journalists, but because journalists are a sensitive group the Government moved very rapidly to provide protection for them—they moved so fast it was rather undignified. Breaches also involve innocent non-governmental organisations—not long ago Amnesty International was intercepted, although the Government did not move on that—and, of course, lawyers.

Intercepting lawyers is serious. Indeed, it is arguably more serious than House of Commons intercepts. In the past when some criminal—by that I mean a terrorist, paedophile or whatever category we are looking at—had their telephone calls intercepted, that intercept would stop when their lawyer came on the line. I went through that in some detail with our erstwhile colleague, Jack Straw, as that was the case when he was Home Secretary although it is no longer true. Now, not only is the intercept not stopped, but it can continue and be recorded. The intercept used to be put in a protected file and was specifically not shown to prosecution lawyers who might be bringing that criminal to justice, but now that is not true. That serious breach will, at some point, lead to a killer being put back on the streets of Britain because they can claim in the European Court, or somewhere like that, that they have not received natural justice because of a breach in equality of arms. That serious and stupid change of policy was made clear by the IPT a little while ago.

The shadow Leader of the House listed MPs who have been affected by intercept. Looking at my list of 10, all I say is that I think they are pretty harmless—that is probably the biggest insult I could give them. Look at who they are. It demonstrates the mindset that leads people to misuse intercept. What on earth were people doing? Of course Jack Straw and Peter Hain had colourful early lives, but what about when they were in Parliament and became Cabinet Ministers? It is extraordinary how this matter is being pushed.

I side with the Home Secretary in one respect: the Wilson doctrine was always a bit slippery. Harold Wilson was a very clever man, but he was not, shall we say, known for his linear thinking. It has always been to some extent deceitful and misleading, but the truth now is that the doctrine is dead. Whether or not it is legally dead, it is in practice dead. It is dead in the eyes of the people—whistleblowers, campaigners and so on—who might come to us, and we have to do something to replace it.

I am glad to hear a commonality of view from those on all Front Benches that we need to put this in statute. That is the only way forward. When the next Bill on this subject goes through the House, I hope it brings together all 65 statutory mechanisms for allowing intercepts and surveillance. Let us understand what it should do. We all know there will be times when the police and the agencies are properly allowed to intercept or put Members of Parliament under surveillance when there is a strong suspicion of a known crime. Frankly, however, that should not be on the Prime Minister’s say-so. It should not be, with respect to her, on the Home Secretary’s say-so. I mean no insult to either of them, but if ever these powers are misused it will almost certainly be by a politician, because they are the people subject to most temptation. It should be on the say-so of a senior judge, or even a court, after presentation of compelling evidence, subject to challenge.

The Government have in place the process they use for terrorism prevention and investigation measures, where the individual cannot know what the evidence is and so will have a special advocate. Those are the measures that should be in any Act. I give notice now that if they are put in the Bill by the Home Secretary, I will support it. If they are put in the Bill by the Opposition, I will support it. If neither put it in, I will propose it myself, because that is the only way to put right what is now in effect a major breach of our democratic traditions.

--- Later in debate ---

[Mr Bone]

Yes, indeed, Mr Speaker. Of course, I was asking if the Home Secretary wanted to leap to her feet. It was probably because she misunderstood me that she did not leap to her feet, so let me give her the opportunity again. If she has not authorised any such telephone intercepts, will she tell the House now? Okay, I think that that answers the question.

We now need to move on. I agree that we need to put the Wilson doctrine—

[Mr Davis]

Had my hon. Friend not confined the question to telephone calls, it might have been that the Home Secretary did not know the answer. For example, the Tempora programme, widely reported in The Guardian and other newspapers, involves the harvesting of vast quantities of data travelling out through Bude. These data are kept for 30 days and made accessible to the United States, among others. My right hon. Friend the Member for Chichester (Mr Tyrie) ran for several years a campaign on rendition that might have made him of interest to the United States. Liberal party Members ran campaigns on the Iraq war that would have made them of interest to the US. It might well be that the Wilson doctrine is being broken by proxy, as it were, simply by the behaviour of our agencies, without explicit approval being granted in each case.

[Mr Bone]

My right hon. Friend makes a powerful point, but that was why I was limiting my questions to telephone conversations, which the Home Secretary would have known about and clearly does know about, but which she does not want to tell the House about.

Oral Answers to Questions

David Davis Excerpts

Monday 12th October 2015 Commons Chamber

[Mike Penning]

The funding formula changes were introduced because nearly every force in the country wanted them. I appreciate that there are concerns out there, but people do not know exactly what is happening, and the changes are separate from the spending review.

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

In about two weeks’ time we are expecting the return of the last British resident, Shaker Aamer, from Guantanamo Bay, and I thank the Government for their actions in support of that measure. However, the last 16 residents of Guantanamo Bay who returned to Britain had been subject to torture and were paid compensation by the Government. Can the Home Secretary tell us how many of those 16 were subject to gagging orders as a result of the settlement?

[Mrs May]

Obviously, arrangements were put in place between the Government and the individuals concerned. My right hon. Friend is right to indicate that as part of that settlement sums of money were paid, but I will not go into the details of any individual settlement.

Anderson Report

David Davis Excerpts

Thursday 11th June 2015 Commons Chamber

[Mrs May]

I thank the shadow Secretary of State for the tone and approach she has adopted on these matters, which—as we all accept across the House—are incredibly serious. It is important that we have full debates about them, as we will be able to do. In the timetable I have set out, people will have an opportunity to reflect fully on the David Anderson report, and other reports that have already been published or will be published, so that when they come to look at the Government’s proposals, they will be able to do so against that firm background.

It is important to draw to the House’s attention the fact that David Anderson looked into all investigatory powers and techniques. He recognised the necessity of the powers and techniques. The issue he was looking at was whether the legislative framework we have is the right one. He has made the point that the current legislative framework is found in a number of different Acts of Parliament, so it is sometimes difficult for people to see the complete picture. Obviously, one of his purposes in his recommendations is to bring that picture together, and to look at the questions of authorisation and oversight.

The right hon. Lady mentioned two particular issues, one of which was access to third party data. David Anderson does not say that this should not be permissible or possible; he says that he would like to see a better case made for it than has been made in the past, but he does not reject the use of access to third party data. On judicial authorisations, he has come down with a particular point of view in that area, and it happens that the ISC took a different view. In looking at this carefully, the point that we will want to reach is ensuring that any decision taken in this area does not adversely affect the relationship between the Executive and the judiciary in relation to other aspects of Government powers and what they need to do, and where any arrangements made are seen to have clear legitimacy and also reflect the issue that the shadow Home Secretary referred to—that the individual who bears the risk, regardless of who takes the authorisation, is of course the Home Secretary. So we have to look at those proposals in the context of that complex mix of areas that we need to consider.

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

Mr Anderson said in the preamble to his excellent report:

“The current law is fragmented, obscure, under constant challenge and variable in the protections that it affords the innocent.”

He went on to say:

“A multitude of alternative powers, some of them without statutory safeguards, confuse the picture further. This state of affairs is undemocratic, unnecessary and—in the long run—intolerable.”

Of his 124 recommendations, the shadow Home Secretary picked up on perhaps the most important—the one relating to this issue of judicial authorisation. This country relies on ministerial authorisation more than any other country in the world, with the possible exception of Zimbabwe. Will the Home Secretary please look hard at this recommendation, with a strong recommendation that it is carried out and the transfer of power from ministerial authority to proper judicial authority takes place as soon as possible?

[Mrs May]

As I indicated in my response to the shadow Home Secretary, we will look at that recommendation carefully, as indeed we will look at all 124 recommendations. Obviously, we will reflect on what David Anderson has said and on any further debate that takes place in relation to this. As I said to her, it is important that we recognise that the question of the relationship between the Executive and the judiciary is not just one that relates to the powers that David Anderson has been looking at, and we need to think carefully about this issue. I recognise the force with which my right hon. Friend encourages me to go down that route, but today I am not in a position, and do not intend, to say that the Government are going to do one thing or another. I think it is right that we reflect more fully on these aspects and make our proposals in the draft Bill that we will publish in the autumn.

Counter-Terrorism: Conflict Zones

David Davis Excerpts

Monday 2nd March 2015 Commons Chamber

[Mrs May]

The shadow Home Secretary has raised a number of serious issues. She asked about Prevent and on that I have to say to her that she needs to stop using the numbers she likes to quote. She tries to compare Prevent before the election with Prevent after the election, but in 2011 we took the very important decision to split work on integration, which is now the sole responsibility of the Department for Communities and Local Government, and Prevent. That was done for very good reasons, and if the right hon. Lady wants to securitise integration work again, I suggest to her that she has not learned from the mistakes made by her Government. I would like her to say, at some stage: whether she supports the changes we have made to Prevent; whether she supports the fact that Prevent now looks at non-violent extremism as well as violent extremism; and whether she supports the changes we have made to make sure that no public money finds its way to extremists, as it did under her Government.

The right hon. Lady made various comments about TPIMs, and has done so outside this Chamber, asking why I did not put certain individuals on TPIMs. I cannot comment on individual cases, but I think she should understand how TPIMs work and how control orders worked. I do not decide to put somebody on a TPIM; the Security Service makes an application to me for permission to put somebody on a TPIM and if it has made a strong enough case, I approve the application. If she thinks that the Home Secretary should be taking operational decisions, I suggest that she should study the history of our constitution.

The right hon. Lady raised the issue of control orders, but, as I have said at this Dispatch Box many times, control orders were being whittled away by the courts—they were not a sustainable system. TPIMs have, in contrast, consistently been upheld by the courts. She mentioned relocation, and, of course, the House has just passed the Counter-Terrorism and Security Act 2015, which adds relocation to the TPIM regime. I understand that she told the BBC on Sunday:

“I think effectively—

that TPIMs and control orders are—

“the same thing if you bring the relocation powers back”.

That is precisely what we have done.

The right hon. Lady says the power to relocate has not always been there, but what she fails to say is that the cases that have been raised in the media date from the time when control orders and the power of relocation were in place. At no point has anybody from the police or Security Service said to me that if we had the power of relocation we would be able to prevent people from travelling to Syria. Indeed, at the weekend, Helen Ball, the deputy assistant commissioner of the Metropolitan police, said—and they have said consistently—

“short of locking someone up for 24 hours a day, you can’t eliminate the risk they pose.”

The shadow Home Secretary herself said yesterday about control orders:

“We can’t pretend it’s going to solve all of the problems.”

I agree with her, which is why we consistently look at the powers available to the police and the security services in dealing with this issue. But, as I made absolutely clear in the answer to her question, this is not just a question of government and the powers we give to the police and to the security services; this is about families and communities as well, and we all need to work together to ensure that we can defeat this poisonous ideology.

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

The Home Secretary should be wary of taking advice from Labour Members on control orders, because under the last four years of their regime seven of the so-called “control order” subjects absconded, in some cases, as we know, to commit jihad abroad. However, will she revisit the issue of using intercept evidence in court, as the best protection of the British public is provided by being able to prosecute, convict and lock up the people who are a threat to the British public?

[Mrs May]

I agree that the best way of dealing with these people who pose a threat is to prosecute them and lock them up. That view has been shared with the assistant commissioner with responsibility for counter-terrorism. Indeed the independent reviewer of terrorism legislation, David Anderson, also made that point. On the question about intercept as evidence, that issue has been looked at on a number of occasions over the years. Most recently, it was considered by a cross-party Privy Council group, which reported some months ago and made it absolutely clear that, in the current situation, it was not appropriate to change the arrangements such that intercept should be used as evidence.

Counter-Terrorism and Security Bill

David Davis Excerpts

Tuesday 6th January 2015 Commons Chamber

[Sir Edward Garnier]

One never knows if the draught is going one way or the other, but let us hope that there is some meeting of minds. As I said, it is not a matter of fundamental principle; I just think it would be neater and more accurate to use the expression “managed return”.

I have no objection to the Home Secretary, in an emergency, making an order that governs the return of British citizens to this country, but within a short space of time—by that I mean hours and, at the most, a fortnight, three weeks or four weeks—the order should be supervised by the courts. Most obviously, it could be supervised by the Special Immigration Appeals Commission, which is now used to hearing matters in private. I know there are objections, but it is used to hearing from special advocates who can present information to the court on behalf of the respondent to the application, who, although the client, cannot hear all that is being said about him. SIAC would be the most obvious court to deal with these cases. The sooner they get to a court experienced in dealing with issues of national security and evidence that cannot be revealed to the wider world, the better. I have a little difficulty, however, with the Secretary of State being given the power to manage someone’s return and exclude them for as long as two years. We need to think about that, and I hope that the Minister, when he responds, will give me some comfort.

I am attracted by the thrust of new clause 2 tabled by the right hon. Member for Delyn, but I am not yet sufficiently persuaded that it will not be bettered by something the Minister, who is a man of great acuity, could come up with, if not this afternoon, then soon. I ask the right hon. Gentleman, therefore, to keep his new clause on hold and let the Minister, either here or in another place, deal with the problem in a way that is acceptable to the Government, the Opposition and those of us on the Government Benches—their loyal supporters—who would like to see the Bill adjusted. That way, before long, we could have a Bill that satisfies us all and deals with the problem of what to do about people who want to do disobliging things to us and our allies, either here or abroad.

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

I associate myself almost entirely with the assessment of the Bill by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier).

Over the past several decades, any number of counter-terrorism Bills have been put before the House. Some have been justified; some have not. Some have been effective; some have not. Some have, in the words of the hon. Member for Foyle (Mark Durkan), fought terrorism, while some have fed terrorism. This Bill is a complex mix of measures, most of which I suspect are necessary, but it shares one characteristic with every single other counter-terrorism Bill I have seen here before: it brings more unfettered power to the Executive. With that go two problems. One is the increasing power of the Executive, which is a bad thing in itself, and the second is an increase in the likelihood of a miscarriage of justice.

I do not have a particular objection to a “managed return” approach to some of the individuals currently abroad committing crimes in other states. I do not subscribe to the “stateless person” concern, particularly when people have deliberately rejected their own allegiance to the state. I think there is a reasonable argument to be had on that, but I am concerned that this power will be effectively unfettered, which is what the Bill says at the moment, in the hands of the Home Secretary.

In common with my hon. and learned Friend the Member for Harborough and indeed others who have spoken, I shall listen very closely to what the Minister has to say. In my view, reform is necessary to bring about, ideally, judicial decision rather than judicial oversight. I would prefer this power to be one for the courts full stop—with all the proper appeal procedures that go with it. Judicial review is not good enough: it is too restrictive, too procedural and insufficiently material. My preference is for a judicial decision, but in its absence, for a close and unfettered judicial oversight. I say to my honourable and old friend the Minister that I hope he will be able to put the conscience of the House at rest today with his proposals. If not, I fear I shall have to support the Opposition in a number of their amendments and new clauses in the group.

[Sir Edward Leigh]

I hesitate to speak in the company of such distinguished lawyers, as I am just a former common or garden practitioner in the criminal courts, but I would like to give the view, as I understand it, of most members of the public. I very much hope in respect of what the public want that the Government will be firm today and will resist amendments tabled by the hon. Member for Walsall North (Mr Winnick). I accept that he is entirely sincere and consistent in his views, and would indeed resist the amendments tabled by the Labour party. I commend the amendments tabled by my hon. Friend the Member for Stone (Sir William Cash), which I signed. I fully understand that the Government might not be able to accept them today, but I hope they will take them away and look further at these entirely sensible amendments.

I wanted to speak today because I believe we need a sense of balance in this debate. We have heard reference made to “carnage”, “atmosphere”, “revolts” and the House of Commons being “up in arms” about this. Judging from how the debate has developed and from the number of Members attending it, I am not sure that that is necessarily the case. As I said in an intervention, I suspect that most Members of Parliament—and, more importantly, most members of the public—support what the Government are trying to do, and we will see what happens in the vote later.

We have these debates, and I quite understand where my legal friends are coming from, and liberty is entirely important. We are using language relating to Magna Carta, habeas corpus, and the God-given rights of free-born Englishmen; that is all very well, but I think the public view the issue in a different way. They are absolutely outraged that people who come here and are given British passports, which should be a tremendous honour and privilege—or indeed people who are raised here and have British passports—feel that this gives them the right to go abroad and fight for an extremist cause. These people not only hold views, but practise views that are wholly alien to everything this country has stood for for hundreds of years. These people are not even like Sinn Fein. At least Sinn Fein in their worst years, even if they were blowing up Members of Parliament, soldiers or innocent members of the public, presumably saw some sort of logic in their own eyes in what they were doing. We are talking about people who are religious fanatics whose idea of fun and aggro is to cut off the head of an aid worker.

The Government are not going to act in a vacuum. The Home Secretary is not going to act unreasonably. We need look only at what the Bill, which I support, says. It refers again and again to the Secretary of State needing to

“reasonably suspect that an individual is, or has been involved in terrorism-related activity”,

and to her “reasonably considering” that action is

“necessary for a purpose connected with protecting members of the public”.

The Secretary of State, furthermore, must

“reasonably consider that the individual is outside the UK”.

She has to act “reasonably”. Surely we must trust our Government and our Secretary of State to protect our people. If the Secretary of State acts unreasonably, we can surely trust the courts in a judicial review system to provide oversight and, if necessary, overturn it. I do not think for a moment that the Secretary of State would act unreasonably.

For the sake of argument, I refer to the amendment tabled by the hon. Member for Walsall North. As I understand it, he wants to replace the system whereby the Secretary of State has to act reasonably, presumably on the basis of intelligence, which may be nuanced, with a full court procedure. His amendment 18 states:

“The court may impose a temporary exclusion order on an individual following an application from the Secretary of State if the court is satisfied that conditions A to D are met.”

I have tried to understand how the amendments from the Labour Front-Bench team are more nuanced, but let me develop the argument. Those who oppose what the Government are trying to do are saying that there should be a court hearing in which all these factors can be discussed and through which we can assess whether a person—he may have gone to Syria, been a jihadist and all the rest of it—is a real threat to the United Kingdom.

I do not know a lot about intelligence, but I suspect that much of what will motivate the Secretary of State in her actions to exclude an individual will be based on intelligence. We are not talking about depriving somebody of their liberty. We are not talking about a free-born Englishman who goes abroad, gets in a spot of trouble, comes over here and is locked up. We are not talking about anything like that. We are talking about excluding somebody—temporarily, as I understand it—who the Secretary of State is reasonably satisfied has gone to fight jihad and engage in terrorist activity, and there is a real danger of them coming back here to blow up our children.

I suspect that a member of the public is not overly motivated by complex, legalistic arguments about judicial oversight, judicial review, delay and the rights of people to claim unfettered return. I suspect that a member of the public will be primarily, fundamentally and, indeed, probably wholly concerned about the safety of themselves and their family, and they will have trust. I trusted the last Labour Government. I know that the Governments of Tony Blair and the right hon. Member for Kirkcaldy and Cowdenbeath (Mr Brown) received a lot of stick over this, but I think they were right in wanting to protect the public. I realise that it went against many of their instincts, but they rightly took the view that such was the nature of the threat that we were fighting a war. It is a situation rather like the one we faced in the second world war, in which some sort of deprivation of traditional liberties has to take place, although we are not actually depriving anybody of their liberty here. We are not putting people in prison. We are simply saying, “You have gone abroad to fight an extremist cause, and if you want to come back here, we think the Secretary of State has the right to exclude you.”

--- Later in debate ---

[Sir Edward Leigh]

Of course I do not propose to leave it to the public and their anger. That is taking my arguments to an extreme limit. I am not suggesting that there should be a lynch mob and that everyone who comes back from Syria should be stopped by the public. We are not talking about the public. We are talking about the Secretary of State acting reasonably, on the basis of all the Government and intelligence sources available to her, to exclude someone temporarily from coming back to this country. This is not an assault on Magna Carta, habeas corpus or the traditional rights of English people; it is a sensible precaution, taken in circumstances in which we face jihadists who have no concept of our liberties, or indeed of any kind of logic. That is why I support the Government’s position.

[Mr David Davis]

rose—

[Sir Edward Leigh]

Before I end my speech, I had better give way to my good friend.

[Mr Davis]

It is necessary to protect public security while avoiding miscarriages of justice. Does my hon. Friend accept that, in a number of cases, the clear finding of the Special Immigration Appeals Commission—the court, a secret court, that will probably consider these matters—has been that the Home Secretary of the day has made a mistake, sometimes on the basis of fallacious evidence and sometimes on the basis of straightforwardly bogus evidence presented by the intelligence agencies? The protection against that, surely, is a court, even if it has to be a secret court.

[Sir Edward Leigh]

I broadly accept that point. Much as I admire the Secretary of State and her advisers, I freely accept that she may make a mistake. However, I think that, just as in the second world war, the threat is such that there must be some diminution of our traditional civil liberties to protect the liberty of the wider public. I am not saying that the end justifies the means, but we are in a very dangerous situation.

We are talking about the Bill; we are not talking about hypothetical situations. The Bill lays an injunction on the Secretary of State to act reasonably, and if a court finds that the Secretary of State has acted unreasonably, it can reverse her decision. I repeat, however, that we are not talking about some fundamental assault on civil liberties, or about depriving people of their liberty in this country. We are simply talking about a reasonable belief that people have fought jihad and a reasonable belief that they are a threat to our people. I think that the bulk of members of the public and the majority of Members of Parliament trust the Secretary of State to act reasonably.

Counter-Terrorism and Security Bill

David Davis Excerpts

Tuesday 16th December 2014 Commons Chamber

[Dr Lewis]

I disagree. When one is dealing with an intolerant ideology, one cannot simply say that one will, through some calm rationalisation, remove all the barbs, evil and poison. I am talking about what must be done to counter the pernicious ideology with which we are confronted.

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

Will my hon. Friend give way?

[Dr Lewis]

I had not quite finished, but of course I will.

[Mr Davis]

Although I understand what my hon. Friend is saying, I rather agree with the hon. Member for Perth and North Perthshire (Pete Wishart) that we are sometimes very unwise in our choice of words. When we choose words such as “war on terror”, we give the other side the standing of soldiers when often we are dealing with criminal misfits. Should we not be more careful about our language?

--- Later in debate ---

[Diana Johnson]

This group of amendments relates to the Government’s plans to create a privacy and civil liberties board. Clause 36 does not actually tell us very much—it is an enabling clause—so I have tabled amendments 24 and 25 to allow us to debate what the board will actually do.

As the clause is drafted, we have a name for the board, and there are three possible ways it could go. First, we have an idea of what a privacy and civil liberties board could look like from its name, which invokes the idea of a body with a wide remit of work on privacy and civil liberties issues in the United Kingdom, and which would safeguard human rights. Such a body would be very similar to the Joint Committee on Human Rights, which was created by a Labour Government.

Secondly, the Home Office has published terms of reference, which suggest a body that will support the independent reviewer of terrorism legislation in providing oversight of counter-terrorism legislation in the UK and investigating the operation of that legislation. We think that what is contained in the terms of reference is sensible and would provide both capacity and openness in the oversight of counter-terrorism policy. However, as I have said, clause 36 is quite an empty provision at the moment.

The third possible version of the board is as currently constituted in clause 36, which gives the Home Secretary powers to create—in future, if she wishes to do so—procedures, membership and the work plan for the board and provisions on publishing of reports. All those details are left to future secondary legislation.

If the body is created it is important that it has strong powers. Our amendments 23 to 26 would help achieve that. The post of independent reviewer of terrorism legislation has been around for over 40 years and its current formulation was created by a Labour Government. The post works well, and both holders of it since 2001 have served with real distinction. That does not mean that we are opposed to further strengthening of the oversight arrangements. Earlier this year, the current independent reviewer, David Anderson, QC, identified the limitations of his reviewer role, including the fact that it was restricted to certain statutes and the fact that significant powers, including those in the Counter-Terrorism Act 2008, were excluded and were therefore going unreviewed. He also pointed out that as a part-time reviewer without proper administrative support, he has extremely limited capacity.

[Mr David Davis]

I guess that the precursor of the proposal is the organ with exactly the same name in the United States, which was activated only after the Snowden events, when information was not just put in the public domain but became controversial and raised issues in Washington. The danger is that the body becomes toothless, does not have investigatory powers and cannot pre-empt a future Snowden. It seems to me that the most important aspect of that is the investigatory powers, not the rest.

[Diana Johnson]

I am sure that the right hon. Gentleman will contribute to the debate, and I certainly have things to say about the title of the body and what it will be doing.

It is important to note what David Anderson said about being a part-time reviewer without proper administrative support and limited capacity. If the proposals on clause 36 were meant to address those concerns, they do not achieve that. They do nothing to address the areas of counter-terrorism legislation excluded from the remit of the commissioners, such as those in the 2008 Act, the powers in this Bill or use of the royal prerogative. David Anderson notes:

“These omissions reduce confidence in counter-terrorism law and are hard to understand, particularly after the Home Secretary agreed, as recently as March 2013, that ‘the scope of the Independent Reviewer’s responsibilities should keep pace with changes to primary legislation’, and accepted in principle my recommendation that the 2001 and 2008 Acts ‘should be examined with a view to extending your statutory functions to include the review of relevant sections of those Acts’. Indeed, as initially proposed in July, the functions of the PCLB would have extended to both these Acts.”

The Bill does not address issues of capacity and resources for the independent reviewer, either, although the impact assessment suggests that the board will receive far greater resources than those given to the independent reviewer. The cost of members of the board seems to take up much of that, and the impact assessment anticipates that the rate will be £897 a day. Is that correct and will the Minister comment on it?

The work that members of the board will do is not clear, either. The current reviewer describes the relationship between the independent reviewer and the proposed new board as

“ill-defined and potentially problematic”

and goes on to say that

“the idea is…for the Board ‘to provide advice and assistance’ to the Independent Reviewer. Both advice and assistance are always welcome: but the former, including from the most eminent and knowledgeable quarters, is already frequently sought and freely given, whereas the latter is critically lacking. To require the Independent Reviewer to chair a Board…will make further claims on the Independent Reviewer’s time and could easily lead to competing priorities and inefficiencies. For there to be a net benefit, commensurate with the cost of resourcing the Board, its members will have to be doers rather than talkers, willing to accept direction in relation to often unglamorous researching and writing tasks.”

The Bill does not make provision for this, nor does the impact assessment’s description explain who will undertake the research and assistance roles that are so badly needed.

Finally, there is an issue about access to documents. Will the panel be security-cleared to the same standard as the independent reviewer? Will the staff? What will be the procedures for redacting documents either before they are passed on to the board or before they are published? These are the issues we are trying to address with our amendments.

Amendment 24 has been tabled to ensure a board with a statutory remit that includes the areas that the independent reviewer does not cover. It will also ensure that the board could respond to other areas of considerable and understandable public concern about the operations of counter-terror policy. We want the board to consider not just privacy but other human rights impacts, as well as the effectiveness of counter-terror policy. As David Anderson points out, counter-terrorism oversight in the past has taken strength from not being limited. If the office of the independent reviewer has influence with the authorities, it is in part because the reviewer can make recommendations to improve not just the fairness, but the effectiveness of counter-terrorism law.

Importantly, especially given the earlier discussions about the breadth of public bodies going to implement Prevent, we also want the board to be allowed to make recommendations to public bodies and public authorities. We tabled amendment 25 in particular to ensure that appointments to this body are made in line with the code of public appointments. We want the board to include real experts who will be able to access materials and provide real insight. We do not want a body compiled through patronage. We tabled amendment 26 to ensure that the statutory instrument creating this body addresses key questions about information gathering, reporting and access to documents.

We would rename the body to give it a title that reflects the nature of what it will actually do. As I said, the current name is misleading. As David Anderson has pointed out, the name not only offers little clue as to the function of the proposed body, but suggests a pure civil liberties watchdog, which this is not. It is not clear why privacy is singled out. Other important human rights are potentially infringed by counter-terrorism law, including the right to liberty, the right to a fair trial and freedom of expression. Mr Anderson takes issue with the word “board”, which he feels is better suited to the historical management of waterways than to the rigorous exercise of scrutiny under the direction of an independent reviewer. So Labour would call the board “a counter-terrorism oversight panel”, and we would give it the powers to back that up.

If the Government are genuinely committed to creating the body they outline in the terms of reference, they should accept these amendments without any hesitation. Of course, this is only part of the oversight package that we require. When the Justice and Security Bill was before the House, the Opposition suggested a number of ways of strengthening the Intelligence and Security Committee to give it a stronger, more independent and more open remit. We remain absolutely committed to the ISC and want it to continue to play a vital role in the oversight of the security agencies alongside a more prominent role for the intelligence commissioners, which is why we tabled new clause 7.

Let me turn briefly to the miscellaneous provisions, particularly clause 38, to which I have tabled amendment 19. Under clause 38, the Secretary of State can make changes that are

“consequential on any provision of this Act”

in any piece of legislation made by any UK legislative body, including the Scottish Parliament and the Welsh Assembly. This is important because under part 5, and particularly under clauses 21, 24 and 30, the Bill creates obligations on a range of bodies that are otherwise entirely devolved. As I mentioned in speaking to an earlier group of amendments, I do not think the Home Secretary should be able to amend devolved legislation without first consulting the relevant Government. That is why we tabled amendment 19, which I hope the Minister will feel able to accept.

[Mr David Davis]

I shall speak to new clause 3, tabled in my name. It is entitled “Intercept Evidence—use in legal proceedings”. It is a probing amendment and I do not propose to press it to the vote on this occasion. If I had wanted to press it, I would have included in the new clause the relevant legal machinery required, which is complex but not difficult to achieve if I wanted to do so. My aim is to provoke some sort of non-partisan debate on what is the cornerstone of counter-terrorism strategy—the legal treatment of intercept evidence. If need be, depending on what the Minister says and what the Government do in the meantime, I shall come back to the issue on Report.

The United Kingdom is unique among major western powers—common law powers and European Union countries—in not allowing the use of intercept evidence in court. I shall come on to the few exceptions in a moment. Why is that the case? It is difficult to know. GCHQ and its predecessor has always resisted putting any intercept evidence into the public domain. Frankly, this has probably been the case since the invention of the telephone. In the early days, I suspect it happened because gentlemen thought it ungentlemanly to listen in on other people’s conversations. Today, however, the argument advanced by the agencies concerns the protection of technique and capacity. Their attitude is very different from that of every other agency of its sort in the world. All our allies in the “five eyes” countries and beyond are equally concerned about protecting capability, but they also give high priority to the prosecution and conviction of terrorists and those who commit serious crimes. They manage to square that circle, but we do not appear to be able to do so at present.

--- Later in debate ---

[Lady Hermon]

I have listened intently to the right hon. Gentleman’s contribution. Will he reflect on the fact that when we had Diplock courts in Northern Ireland they were supported by one section of the community and despised by another. We do not have Diplock courts in Northern Ireland any longer. If his proposal were to be legislated upon and we have a secret court that sits and hears all the evidence, including the intercept evidence, which I agree should be allowed into court, how does he think that would be received in Northern Ireland?

[Mr Davis]

I speak as probably one of the last people to give evidence at a Diplock court. It was against a terrorist who was convicted and then, under the Good Friday agreement, promptly released—it was a very frustrating process. Of course there is a problem of acceptability with any secret court. The hon. Lady will know that I fight vigorously against the idea of secret justice, but what we are talking about here is not secret justice; it is about a decision to let into the public domain more than is currently let into the public domain. Sometimes that information is exculpatory. One of the problems that has arisen with SIAC is that the agencies have not been good at their evidence discipline. At least one case has been struck down. A special advocate called Nichol, who is now a judge, discovered that MI5 was claiming that one person against whom it was bringing a case had used a passport to cross a border one week, and then the next week had brought a case against somebody else claiming that he used the same passport on the same day in a different place. So the agencies have their weaknesses. Nevertheless, the tool is significantly better than what we have at the moment. We may use intercept evidence in terrorism prevention and investigation measures and control orders. I happen to think that TPIMs and control orders are completely ludicrous, because they people who should be inside prison leave out on the streets. They should perhaps be called non-control orders, because all the dangerous ones disappear. Of course, it is not easy and there is an issue of presentation, but if there is fair representation from both sides to decide on what information should be put in the public domain, it is as close as we can get to public justice. That is the point.

Counter-Terrorism and Security Bill

David Davis Excerpts

Monday 15th December 2014 Commons Chamber

[Frank Dobson]

That might be an improvement, but the practicalities of what happens in Turkey or Syria are not changed by a court decision or endorsement here.

What the process does not do—I would have thought that we all want to see this done—is bring people under our jurisdiction, prosecute them and, if they are found guilty, jail them. Surely that should be the main objective of Britain’s policy. The process is likely to get them picked up, but not by us: they will be picked up by somebody who may or may not be one of our allies. I believe, therefore, that the basic Government proposal undermines and interferes with their fundamental rights of abode in this country and it does not achieve what we want, which is to see terrorists brought to justice. The proposal of my right hon. Friend the Member for Delyn (Mr Hanson) would address both issues, so it would be an improvement.

The human right of a British citizen to abode in this country is not some fancy right dreamt up in Brussels or Strasbourg, and it has not been created by the Human Rights Act 1998. It is a right of citizens to which Gladstone and Disraeli would have subscribed, not to mention Palmerston, who, after all, sent a gunboat to Greece to protect the interests of an exceedingly dodgy Maltese who probably had committed a crime. There is nothing new about this right and we need to be very careful abut doing anything that would undermine it.

I believe that notification and managed return orders do not deny the fundamental rights at all; do not expose people to being picked up by the Turkish authorities and still less by the Syrian authorities; involve the identification of the suspects but do not tip them off that they will be arrested if they come back to this country; which the temporary exclusion orders do; bring the suspects within British jurisdiction; and will result, if those people are guilty, in their being prosecuted and punished, which is what we want. We do not want them roaming around. If they come back here and are guilty of what they are suspected of, they will be picked up when they arrive at the port, the airport or St Pancras station. That is what we want to happen and it will not happen under the exclusion orders.

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

I had not intended to speak today, but I have been sitting here getting rather more uncomfortable about some aspects of the proposal. I do not propose to go into the complex practical issues, which were well laid out by the right hon. Member for Holborn and St Pancras (Frank Dobson), who gave thoughtful input, as ever, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They outlined the issues and complexities very well and I suspect that those complexities will best be addressed by negotiation between those on the two Front Benches, which is not something I often recommend.

What concerns me today is the issue of the Home Secretary herself exercising the power. I am concerned that it comes about without prior judicial approval or, indeed, without being a power of the court, which would be my preference. Over time, I have become progressively concerned about the accretion of fairly absolute power to the state in counter-terrorism policy. Absolute power is pretty important. My hon. Friend the Member for Skipton and Ripon (Julian Smith) suggested that these measures did not impinge on people’s liberties in the same way as TPIMs might, but I am afraid that the impingement is pretty sizeable. I do not necessarily disapprove of it at all, but it should be exercised with a degree of judicial care.

These accretions of power have come about since the late 1980s and the 1990s when we avowed the various security services that had up until then not been recognised in public policy, or that were at least not in the public domain. At the time, it seemed quite reasonable for the Crown prerogative to be used as a method of giving warrants and of enacting the state’s will to protect the public. I took the 1994 Bill on the Secret Intelligence Service through the House. We did not foresee the level of use—the number of warrants used and the level of power being exercised—that is now necessary to deal with the Islamist terrorist threat.

What is more, we did not give much thought to how such power might be abused—not that it is at the moment, but it might be in the future—or how many errors might occur, which does happen. We had at the back of our mind a model of accountability that, frankly, does not work. The Minister for Security and Immigration will be familiar with the number of times on which he and I have had exchanges that amount to my asking him a question and his writing back something like, “I never comment on security matters.” That is not a particularly good form of accountability for any mechanism.

My concern is that along with progressive secrecy, secret courts and all the other things we now have, the weak accountability—

[Julian Smith]

Will my right hon. Friend give way?

[Mr Davis]

If my hon. Friend will permit me, I am coming to the end of my speech.

The level of secrecy, the low level of accountability and the power accruing to the Government, which is enormous when we think about our historic liberties in this country—this is in no way a criticism of the Home Secretary, as I would say the same of any Home Secretary, any Foreign Secretary or any Secretary of State—are why I am attracted by new clause 11. I do not know whether it will be pressed to a vote tonight, or whether it will come back on Report, but I ask the Government closely to consider the TPIM model. It is very sensible and those on the Opposition Front Bench have made a good case for it.

[Caroline Lucas]

I want to say a few words about the amendments tabled in my name. The tone of the debate has been useful and thoughtful and I have agreed with much of what others on both sides of the House have said. We are all trying to grasp our way towards something that provides robust security while guaranteeing human rights. My worry about the Government’s proposals on temporary exclusion orders is that they get that balance slightly wrong. There is a significant risk that, for many of the reasons that were outlined by the right hon. Member for Holborn and St Pancras (Frank Dobson), they will, rather perversely, be counter-productive. I therefore think that the alternative system of notification and managed return orders has a lot to commend it, although the comments of the right hon. and learned Member for Beaconsfield (Mr Grieve) caused me to think again about how it would work in practice. There is a lot to explore here.

--- Later in debate ---

[Mr George Howarth (Knowsley) (Lab)]

The right hon. and learned Member for Beaconsfield (Mr Grieve), my right hon. Friend the Member for Holborn and St Pancras (Frank Dobson), the right hon. Member for Haltemprice and Howden (Mr Davis) and now the hon. Member for Brighton, Pavilion (Caroline Lucas) have all argued, from slightly different standpoints, that the ideal situation is to have some sort of judicial process. I do not think anybody could argue against that from a democratic and human rights perspective. In cases in which there is the possibility of a prosecution or other judicial process to bring about the type of outcome that we desire, that is clearly the preferred option.

As I see it, the choice is between the measures in the Bill—temporary exclusion orders with a managed return—or a form of judicial process that might be even worse than that. Perhaps the Home Secretary will correct me if I am wrong, but in almost every case I can envisage that would be affected by this process, the information that will determine the trigger of a temporary exclusion order would be based on intelligence—she is not shaking her head in disagreement, so I will assume assent on that point. If that is the case, any form of judicial process to verify or authorise that process would inevitably involve wholly or partly closed proceedings. It would be impossible to give evidence from intelligence in open court for all the reasons that we have repeatedly debated. Although that is the ideal situation, given the presumption that in most, if not all, of these cases the evidence will be intelligence based, it will be difficult to rely solely on a court proceeding, no matter how it was constructed or held, other than on the basis that it would be either closed, or at very least semi-closed.

[Mr David Davis]

The right hon. Gentleman is a thoughtful and long-standing expert in this area, and he is right to say that it will be a Special Immigration Appeals Commission style process. In the past, however, SIAC-style processes with control orders and TPIMs have prevented quite egregious errors—he will remember the case of MI5 presenting the same passport two weeks running against two different suspects, and that being caught and stopped by the SIAC. My concern is not just about the increase in power; it is also the error rate and the fact that someone can be denied serious rights without a proper review. The right hon. Gentleman is right that a SIAC-style process would be necessary. He knows I am not fond of that, but it is better than nothing.

[Mr Howarth]

I think I am grateful to the right hon. Gentleman for his intervention, but none of that changes the fact that, regardless of the quality of the submission to the SIAC court, some intelligence material would be required. Even from a justice point of view that is not an ideal situation, and that is a problem.

Criminal Law

David Davis Excerpts

Monday 10th November 2014 Commons Chamber

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

Perhaps it is entirely appropriate that I should follow a Member who has been disorderly, given the nature of the House all day—in many ways this is the most disorderly I have seen it in 20 years. However, in one respect he demonstrated a really important point: he gave us an example of what we should have been debating had this parliamentary gambit not been attempted. What we have seen today is a very clever parliamentary gambit by Labour Front Benchers, but it is acutely undemocratic. It has denied Back Benchers on both sides the opportunity to debate one of the most contentious issues to come before the House for some time.

My right hon. and learned Friend the Member for Rushcliffe (Mr Clarke) and I have completely different views on how this should proceed: he believes that this measure is entirely necessary for the delivery of law and order, and I believe that it is pernicious to law and order. I take the view that the first duty of this House is ensuring justice for subjects of the British Crown. What it has done, in fact, is allow a number of people, including the constituent of my hon. Friend the Member for North Herefordshire (Bill Wiggin), to suffer a miscarriage of justice and then have it arbitrated on in what could be termed a parody of a justice system in courts outside the United Kingdom.

[Nick de Bois]

My right hon. Friend makes an entirely important point. The House might be interested to know that my constituent Andrew Symeou, who languished in jail for 11 months and was not served well by the European arrest warrant, has just tweeted to say that today

“should be about preventing injustice and protecting British citizens, not be used as a political football!”

The debate should be heard.

[Mr Davis]

My hon. Friend’s constituent is entirely right. There are many cases of British citizens, such as Andrew Symeou, Deborah Dark and Colin Dines, being badly mistreated. It is not just British citizens, because the leading criminal lawyers in 11 other countries have complained about this procedure in previous years. It is a very serious issue. This House, above all others, should have been in a position to debate it at some length, rather than being faced with this awful choice between accepting the Government’s business untouched and forgoing the debate altogether in the fond hope of having it another day.

[Jacob Rees-Mogg]

If we accept the motion proposed by the shadow Home Secretary, we will not forgo the debate; we will be allowed a full debate and the Home Secretary will be able to return with a proper motion on the European arrest warrant. The shadow Home Secretary’s motion is much to be commended.

[Mr Davis]

I have to say that I disagree with my hon. Friend—I very rarely do. I would have liked to have had a full-blooded debate with several motions on each component, or at least packages of components of this so-called package, but that was not available to us today, and there is no guarantee that we will get it if the Opposition’s motion succeeds.

[Jacob Rees-Mogg]

My right hon. Friend is absolutely right that there is no guarantee, should the Opposition’s motion be carried, that we would get the proper debate that so many people are demanding, but the Government, having behaved pretty shamefully today, will be facing huge embarrassment if they do not give in to the clear will of the House, which is that there should be more time for debate. I urge him to support the shadow Home Secretary.

[Mr Davis]

I am afraid that—I will explain why in a moment—I am not in the business of casting something on the waters and hoping that it comes back. If I hear from both Front Benches that they have agreed to meet all day tomorrow to go through this business again, I will change my view, but I will not take a chance with something quite so invidious as this. Let us remember what we are talking about: taking British citizens, with no prima facie evidence, and sending them off to courts elsewhere in Europe. What we have been asked to debate assumes that those courts all deliver equal justice. Romania does not deliver equal justice. Nor does Bulgaria, Greece or Italy. Some of them have post-Soviet justice systems to which we are sending our constituents.

What is so anti-democratic about the Opposition’s proposal is that it would deny many Members who had intended to speak today the opportunity to do so, and that is a tragedy, because this House’s first responsibility, as I have said, is the delivery of justice for our constituents. We will not have the opportunity to discuss the alternatives, such as having a multiple-negotiated outcome, rather than the European arrest warrant. We will not be able to talk about the other implications of Europol and Eurojust for the actions of the European Court and the ability of the Home Secretary to pass laws that protect us. All in all, I think that this is a very unfortunate outcome for Parliament today—a very clever parliamentary trick, but very poor democracy.

[Simon Kirby (Brighton, Kemptown) (Con)]

Does my right hon. Friend agree that it is not only those Members who wished to speak tonight who have been cheated, but those who, like me, wished to listen to the arguments on both sides?

[Mr Davis]

I agree with my hon. Friend. He will hear some of us attempting to stay in order—desperately, Mr Speaker—while making those arguments, but he will be unable to vote explicitly on them; he will have to vote on whether we have a vote on another day or we close down the debate today. That is not the way Parliament is designed to work. I am afraid, therefore, that this is a travesty of democracy.

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

I thank my right hon. Friend for making his comments. Would not the solution be for the Government to make it clear from the Dispatch Box that they will make time available to allow us to discuss the issue properly, as the country wants and as Parliament wants, and then we can move on? It is within their scope to do that now.

[Mr Davis]

It is, of course, within their scope, and I was very tempted at the beginning of the exercise to suggest to the Home Secretary that she shoots the Opposition’s fox—that she says, “We’re going to have a day’s debate tomorrow. There you are. All over.” They would have looked stupid and we would have looked very democratic. Sadly, that did not happen. I will not vote for the proposal today. I may abstain, I may double-vote, but I am not going to vote for the proposal because I do not want us to leave uncovered an extremely important debate in the history of this House.

Business of the House (Today)

David Davis Excerpts

Monday 10th November 2014 Commons Chamber

[Jacob Rees-Mogg]

I am extremely grateful to my hon. Friend for making that point, because I hope it brings home to those on the Treasury Bench the deep discontent. I was saying earlier how deeply grateful I am to you, Mr Speaker, that you are protecting the rights of the legislature against the Executive by clarifying the terms of this debate. As I look down from here at the Treasury Bench, I want to see something that is solid, but I am worried that it is made of increasingly crooked wood. We want to have it re-solidified and we want this motion withdrawn.

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

On a point of order, Mr Speaker. You have said on a couple of occasions, in response to Members of this House, that you will not call the Home Secretary until later on because others wish to speak. Is there anything to prevent her from speaking before the end of the debate?

[Mr Speaker]

It would be normal for the Home Secretary to speak either at the beginning or at the end of the debate. A most courteous approach was made to me on her behalf suggesting that it might be helpful to the House if she were to wind up the debate, and I agreed to that request. It is not that I am seeking to delay the Home Secretary for one moment; it is that there is provision for others to speak. When they have finished doing so, the Home Secretary can and will speak, and we will look forward to that. I think it would be a bit odd if I suddenly interrupted the flow of the debate now, when other Members are seeking to contribute, but I will take one further point of order from the right hon. Gentleman.

[Mr Davis]

Further to that point of order, Mr Speaker. I quite accept that it is not normal procedure, but at the moment we are debating something we know not what. We do not know whether the Government are going to change the motion or stay with this motion. My stance on this matter is entirely different depending on which of those two outcomes it is. Therefore, it might be useful for the House to know rather earlier than usual.

Data Retention and Investigatory Powers Bill

David Davis Excerpts

Tuesday 15th July 2014 Commons Chamber

[Dr Julian Lewis]

Having made a brief intervention earlier that was largely helpful to Members on both Front Benches, I will now rectify the balance by saying that, however one looks at this debate in terms of whether or not enough time has been made available for those who want to speak to have their say, the overall impression that has been given to the public has been unfortunate, to put it mildly. My understanding is that this Bill has been made necessary because of an ECJ judgment that was arrived at in April. It is now mid-July. Why on earth has it taken so long to get from that judgment all those weeks ago to the position now, whereby it appears to the public that we have to make what I believe to be very necessary changes in a terrible rush? They are under the impression—in the context, it must be said, of the paranoia over the Edward Snowden affair—that we are doing this in a desperately swift and ill-considered way.

Personally, I accept that there is some strength in the argument that the time the Government have made available at this very late stage is probably enough for most of the people who are likely to contribute to the debate in the Chamber to do so; but not enough time has been given to those in the country who want to develop the wider public argument. One would not like to give the impression that one was trying to get this Bill through in a rush before a suitable momentum of public concern had the opportunity to build up, but, if that was not the reason for the delay, what was?

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

My hon. Friend says, quite properly, that there is time for those of us who are concerned to make our points, but there is no time for us to research those points. There are significant legal and practical issues involved, and some of the issues are difficult to research because most of them are secret. One weekend is a ridiculous time scale in which to consider something that goes to the heart of the fundamental relationship between the state and the citizen.

[Dr Lewis]

I hope my right hon. Friend accepts that the nub of my short contribution is to say that we should not have found ourselves in this position. When the ECJ judgment was made we should immediately have swung into action so as to give people reasonable warning that this debate was going to take place, and then they could have done the degree of research necessary to avoid the impression that things were being rushed through in unseemly haste.

--- Later in debate ---

[Mr Davis]

The Minister is conflating two issues that amendment 2 seeks to deal with. First, this House has not had the time to research, consult and debate this issue. Secondly, the technology underlying the problems we face is changing. It is not mutually exclusive to address the first issue—lack of debate, consultation, research and knowledge—through, in proper, slow time, a consultative process in September and a proper Bill procedure in the autumn, and later, if he thinks it fit, to come back to the House with another review. That would at least allow the House to make its decision on a proper basis. If he allowed that, I would be happy to vote for Third Reading today. If he does not allow it, I am afraid that this is an undemocratic process that none of us can support.

[James Brokenshire]

We are going back over ground addressed on Second Reading and in the programme motion debate, but it is worth restating the fact that the Bill does not extend powers that this House has already granted through RIPA. It effectively restates what is already existing law. The legislation does not, therefore, seek to create something new, but simply restates what is already being operated, giving it clear legal underpinning in the context of the ECJ decision and the pressures from industry and others in terms of challenge.

On the need to act now, I say again that no Government embark on emergency legislation lightly. No Government seek to use fast-track legislation unless they judge that it is necessary. Our real concerns are that we have reached a tipping point regarding co-operation on lawful intercept and the risk that our essential powers on communications data, which are used day in, day out by law enforcement and the security agencies that protect this country, will simply not be available. That could occur at any time between now and the long-stop date that the right hon. Gentleman and others are suggesting in relation to December 2014. That is why the Government have judged that emergency legislation is appropriate and why we think it necessary to have a review: to ensure that this House is properly informed of all the issues to legislate carefully in a sensible way by no later than 31 December 2016, when this legislation would cease to have affect.

These are complicated matters. We need to act swiftly to deal with the particular challenge we face and to avoid the damaging loss of capability that confronts us. However, I do believe a longer-term considered approach is appropriate, hence the reason for having the review and for providing assurance in relation to the commissioner for the interception of communications and his reports on operation. There are already a number of reviews in the system. The Intelligence and Security Committee is conducting an inquiry, as is the Royal United Services Institute.

There is also the further review, which is to be led by David Anderson, of the communications data and interception powers we need, and how they are regulated in the light of the threats we face. As I have indicated, the Bill will set this out in legislation in terms, but he needs to be given some time to conduct this work. New clause 7 asks him to complete his work by 1 May 2015. That being so, I can see no point in requiring Parliament to return to these issues almost as soon as we return from the summer recess, without the benefit of the work we have set in train. Any such legislation would also inevitably require an accelerated timetable. Rather, we believe that Parliament needs to consider these issues properly after the election, drawing on the outcome of the reviews that are in train and with the ability to consider everything at a normal parliamentary pace. Accordingly, I invite the hon. Member for West Bromwich East (Mr Watson) to withdraw amendment 2, so that we can have this process recognising the needs now and recognising the need for further review and for the House to return to these matters in the light of that informed basis.