Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between David Davis and Julian Lewis

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

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

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

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

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

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

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

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

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

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

[Dr Lewis]

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

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

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

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

Overseas Operations (Service Personnel and Veterans) Bill

Debate between David Davis and Julian Lewis

Report stage & 3rd reading & 3rd reading: House of Commons & Report stage: House of Commons
Tuesday 3rd November 2020 Commons Chamber

[Mr Davis]

My hon. and gallant Friend is exactly right, and I want to see the reputation that comes from that preserved after this Bill becomes law.

I will briefly address the weaknesses of two parts of the Bill separately—this addresses directly my hon. Friend’s comments: first, the criminal prosecutions and then the civil cases.

Prosecutions against armed forces personnel are not brought by just any lawyer. They are brought by the Service Prosecuting Authority, which is part of the Ministry of Defence. As it stands, a prosecution can be brought only where there is sufficient evidence that the accused committed the offence and where it is in the public interest that the prosecution should be made. There is therefore already a high threshold for prosecution. As a result, since 2000, there have been 27 prosecutions. Given how many thousands of members of our armed forces have been in operations in difficult circumstances—in close quarters with the civilian population, fighting against an asymmetric enemy—that is an astonishingly low number. That is not a prosecution system that is out of control. That alone shows that the system is not slanted against soldiers.

[Dr Julian Lewis]

I agree with my right hon. Friend that the prosecution system is not out of control, but does he agree that the investigatory system is? To answer my own intervention on the hon. and gallant Member for Barnsley Central (Dan Jarvis), is my right hon. Friend aware that clause 3(2)(b) says that the five-year limit will not apply unless

“compelling new evidence has become available”?

Why is he not reassured by that?

[Mr Davis]

I will tell my right hon. Friend in a moment exactly why I am not reassured by that, but he is quite right that the issue is the repeated investigation of people who are innocent, in most cases. That is a harassing and destructive thing. The best known case is that of Major Campbell, who underwent eight investigations. I am afraid that the real blame lay with the Ministry of Defence for at least four of them. That is what we should address.

As I say, the prosecution system is not slanted against soldiers. I will give the rather gruesome, well known example of Baha Mousa, a 26-year-old Iraqi man who, in 2003, was dragged from his desk while working as a hotel receptionist by British soldiers, handcuffed and taken to a detention facility in Basra. Thirty-six hours later, he had been beaten to death, having suffered 93 separate injuries while in the custody of British forces. The number of solders convicted of murder as a result: zero. The number convicted of manslaughter: zero. There was a single conviction of one soldier, who confessed to inhumane treatment and got one year in prison.

It is difficult for prosecuting and other authorities to make out a clear-cut case of torture, inhumane treatment or even manslaughter, so I do not believe that the system operates against the interests of the armed forces. Indeed, on the several occasions on which the Government have been asked to produce a case of vexatious prosecution—not investigation, but prosecution—they have never been able to name one. That is not surprising. The Service Prosecuting Authority—the body that brings prosecutions—already dismisses claims that it believes are vexatious. In evidence to the Joint Committee on Human Rights, Nicholas Mercer, the former Command Legal Adviser in Iraq, said:

“Before I left the army, I gave legal advice on a number of prominent cases…I found a case that was without merit and I closed it. It was as simple as that. I do not need legislation to do that. It happens already.” That is a good reflection on our system, and we should not be ashamed of it.

The area of contention, which has been mentioned by the hon. and gallant Member for Barnsley Central, is the triple lock against prosecutions. The Government’s own stated aim is to raise the bar for prosecutions after five years. In its scrutiny of the Bill, the Joint Committee on Human Rights concluded:

“a limitation period that would prevent prosecutions is unlawful under international law if it prevents investigations and prosecutions in relation to torture, war crimes, crimes against humanity and genocide.”

The Government state that the measure is not a statute of limitations. The Law Society, which some may dismiss, agrees with the JCHR, and concludes that the presumption against prosecution creates a “quasi-statute of limitation” that is “unprecedented” in criminal law, and represents

“a significant barrier to justice.”

Rather more importantly, the Judge Advocate General, whom I described earlier, has said:

“In my view, what this Bill does is exactly the opposite of what it is trying to do. What it is trying to do is to stop ambulance-chasing solicitors and vexatious and unmeritorious claims. The Minister quite rightly said we want rigour and integrity. What it actually does is increase the risk of service personnel appearing before the International Criminal Court. That is why I said it was ill conceived.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c.117-18, Q234.]

That is the Judge Advocate General, the most expert person in the country on this subject. He also described, incidentally, the Bill as bringing

“the UK armed forces into disrepute”.

If the Government really think that schedule 1 does not make justice more difficult, they would not have excluded sexual offences from the remit of the Bill. If it is not difficult to get a prosecution, why exclude any category? It was right to exclude sexual offences, and the Government should exclude torture on exactly the same grounds. That is the point of the amendment in my name and in that of many others.

I have a couple of minutes, so I will deal briefly with the issue of civil claims. There have been 1,000 civil claims, according to the Ministry of Defence, all of them against the Ministry, not against individual soldiers—as far as I can tell. Surprise, surprise, someone trying to get money goes to the Ministry, not to a poverty-stricken soldier. However, that does not help veterans; it actually hinders veterans.

The point has been made by other Members, so I will press it no further, except to quote the British Legion director-general:

“it protects the Ministry of Defence from civil action—from someone bringing a case. That longstop does not protect the armed forces personnel.”––[Official Report, Overseas Operations (Service Personnel and Veterans) Public Bill Committee, 8 October 2020; c. 86, Q161.]

Of course, what the Bill could stop are the sorts of cases that exposed Snatch Land Rover, the lack of provision of body armour and a number of other scandals, which quite properly improved the operation the MOD.

The Bill does the same for torture cases. All the stories about torture and rendition came in the first instance from civil cases—all of them. That is what brought them into the public domain; there was not a single criminal prosecution in the first instance. It is difficult to bring a torture case. In most, only two people know about the torture: the victim and the oppressor—the torturer, or torturers. Typically, no other evidence is available in the public domain. A case is difficult. Even in the case of Belhaj, the most famous torture case—we delivered Mr Belhaj and his pregnant wife to the Libyans, for heaven’s sake—it took 10 years, essentially, to get to court, and of course he got an apology from the Prime Minister. That is why the issue of torture is almost impossible to bring to court.

Time is running out, so I will finish by quoting the questions that the Judge Advocate General put to the Minister in Committee. He said that

“six Royal Military Police were killed…in 2003”,

and asked:

“would we accept that there would be a presumption against… prosecution”

of their murderers? Would we expect special arrangements—

Loan Charge 2019: Sir Amyas Morse Review

Debate between David Davis and Julian Lewis

Thursday 19th March 2020 Commons Chamber

[Mr Davis]

I do. The hon. Lady tempts me into a political point, because the Blair Government were the most active promoter of these schemes, but she is right in general.

When something is as unclear as this tax law obviously was, we do not take the date of resolution from the first date that HMRC wins—we do not keep going until we get the answer that the Government want. We take it from the day it is finally resolved in the Supreme Court. The case was not finally and definitively settled by the Supreme Court until 2017, when it found in HMRC’s favour on the Rangers, Dextra and Sempra cases. The Government—this relates to the point made by my right hon. Friend the Member for New Forest West—then passed further legislation to clarify the law. Even after the court case, they passed legislation to clarify the law. If it was so clear, why did we need a new law in 2017? That is the fundamental point.

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

My right hon. Friend is making an unanswerable case in logic, but I would like to put another political point to him. The cause of tax avoidance is not normally associated with such parties as the Labour party or the Liberal Democrats, but I am sure he would acknowledge that Members from both those parties have played a leading role in trying to put this injustice right.

[Mr Davis]

My right hon. Friend is absolutely right. I started by saying that this is not a political issue; it is an issue of honour. As we would expect from our House—one of the greatest Parliaments in the world, if not the greatest—all sides take part in defending that honour.

--- Later in debate ---

[Dr Julian Lewis]

Maybe the thesaurus wasn’t clear.

[Mr Davis]

Yes, I will send HMRC a copy of Microsoft’s thesaurus. Not only that, but in paragraph 3.8 of his report, Sir Amyas states:

“The Review’s legal advisers found that there was no precedent for that element of the design.”

That is the retroactive, retrospective or backward-looking element. There was no legal precedent for that design. I hope, frankly, that the Government will now stop playing with words and finally concede that this is indeed a retrospective measure—an unprecedented retrospective measure.

The only just, fair and rational resolution is to remove the retrospective nature of the loan charge and set the cut-off date when the law became clear—when the Supreme Court finally settled the matter in 2017 and when the Government felt it necessary to legislate to make clear what they meant in the first place. That is why, as I made clear, if the Government do not act to address this issue, Parliament—all of us who take this very seriously—will have to act for them and make clear that, in the future, HMRC can under no circumstances act retrospectively. If we cannot solve this, here comes a Finance Bill. I suggest that the Minister should make one simple adjustment to his plans before they are published: change December 2010 to July 2017. That would resolve the issue. It would lift enormous pressure off 50,000 of our constituents, and it would put the Government in a morally defensible, justifiable and decent position.

Tax law is the only part of English law where “innocent until proven guilty” does not apply. If HMRC tells us we owe it money, then, until we prove otherwise, we owe it money. It is therefore very important that the law is clear—that it is not subject to reinterpretation by subsequent Governments and it does not move with social mores or whatever; it is simply clear. That is what we have to do. In the interests of natural justice and the financial and mental wellbeing of thousands of our constituents, it is time for the Government to change their mind and remove this harrowing burden from the 50,000 people who have been caught by it.

EU Exit Negotiations

Debate between David Davis and Julian Lewis

Monday 13th November 2017 Commons Chamber

[Mr Davis]

If I may say so, “any number of occasions” was one occasion—in front of the Select Committee, when I was asked the explicit question what could happen to the negotiation in extremis. Since I was pointing to previous examples, it is hardly a statement of either intent or expectation—it certainly is not. As for the rest of the hon. Lady’s question, this is pretty straightforward. We are aiming to hit October. Mr Barnier is aiming to hit October. I hope that we both do. I certainly hope that we hit the target of being well before the departure date. The reason for the amendment to the Bill is that it reflects what European law tells us.

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

Is there any prospect of the excellent Sir James Dyson being invited to join our splendid team of negotiators?

[Mr Davis]

I have spoken to Sir James Dyson. I do not necessarily agree with his tactical advice, but he is a brilliant exponent of what a great success this country can be when its engineers get stuck into the job.

EU Exit Negotiations

Debate between David Davis and Julian Lewis

Tuesday 5th September 2017 Commons Chamber

[Mr Davis]

I am lost for words as to where to start on the logical impossibilities. First, I do not recognise the hon. Gentleman’s economic numbers. We have a country that has had sharp increases in exports and sharp increases in manufacturing. Vast numbers of good things are happening on the economic front, including the highest employment ever and the lowest unemployment for 42 years, so I simply do not recognise his rather interesting barb.

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

Have not the exchanges this afternoon shown once again that the Opposition’s position is that any agreement at all, no matter how bad for Britain and no matter how extortionate, is better than a clean break in 2019 if a good deal for Britain is not then on offer? Does it remain Government policy that a clean break in 2019 is better than a bad deal, as it may lead to more fruitful negotiations further down the line after we have actually left the European Union?

[Mr Davis]

The answer is yes, because the Prime Minister reiterated that just the other day.

Oral Answers to Questions

Debate between David Davis and Julian Lewis

Thursday 27th April 2017 Commons Chamber

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

How can any negotiator achieve any concession from any other negotiator if it is known in advance that he will not walk away if no concessions are given?

[Mr Davis]

My right hon. Friend is absolutely right. He crystallises the point on “no deal is better than a bad deal”, and he clearly demonstrates why the Labour proposal, apart from being completely impractical, would never be deliverable.

Legislating for UK Withdrawal from the EU

Debate between David Davis and Julian Lewis

Thursday 30th March 2017 Commons Chamber

[Mr Davis]

That question is stratospherically above my pay grade, but let me pick up the underpinning point about the volume of legislation. We are bringing a large amount of the legislation straight into UK law without change. The reason for change and the use of statutory instruments is, as I said to the Labour spokesman earlier, that there will be technical amendments and issues that will come up. Separate to that there will be primary legislation—on immigration, customs and a variety of other areas. That is different, but the technical legislation will aim to make things practical, not to maintain great changes in policy, and this House should be well able to do that.

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

Leave campaigners will vote for the Bill as it is part of the process of withdrawal, but remain campaigners admire EU law and want its provisions to continue, so can the Secretary of State think of any good reason why the great repeal Bill should not be passed unanimously?

[Mr Davis]

No.

Exiting the EU: New Partnership

Debate between David Davis and Julian Lewis

Thursday 2nd February 2017 Commons Chamber

[Mr Davis]

I will certainly do the first half; I will certainly redouble my efforts, although they are pretty intense in any case, to ensure that this happens quickly. My hon. Friend is right that we are talking about just a few countries. I suspect their reasoning is the communautaire reasoning of not starting anything before the negotiations start, and I hope this will be rapidly resolved thereafter.

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

Does not the fact that so many Members from both sides of the House who wanted us to remain in the European Union nevertheless last night voted to trigger article 50 set a fine example that Members of the unelected upper House would do very well to follow?

[Mr Davis]

I was sitting there calculating whether my right hon. Friend’s question today was longer than his speech yesterday, and I think it was.

Yes, I hope Members in the upper House do pay attention. The Bill is a manifestation of the will of the people—nearly 17.5 million people—and I would expect the upper House, which quite properly has its place and its rights, to respect that will.

Article 50

Debate between David Davis and Julian Lewis

Tuesday 24th January 2017 Commons Chamber

[Mr Davis]

That is of a piece with those arguments that say that we want to have a second referendum so that we can revisit this. What it does is to give a prize to somebody who is trying to put up the worst possible negotiation for us. There are plenty of members of the European Union that want to force us into changing our mind and going back inside, and we do not want to do anything that allows or encourages that to happen. The hon. Lady is not right to say that the vote is meaningless; for a start, the Select Committee and the Opposition both asked for it. In addition, it will be—I repeat this again—the last of many, many, many votes and debates on major legislation.

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

Hard Brexit means saying that one is going to leave the European Union and actually doing it. Soft Brexit means saying that one is going to leave the European Union and remaining in all but name. Which course do the Government intend to follow?

[Mr Davis]

In his younger days, my right hon. Friend was an expert in Soviet propaganda. I am afraid that I view “hard Brexit” and “soft Brexit” as terms of propaganda.

Article 50

Debate between David Davis and Julian Lewis

Monday 7th November 2016 Commons Chamber

[Mr Davis]

I thank the hon. Gentleman for his supportive comments. Both cases in front of the courts are issues relating to the UK constitution, and the European Court has absolutely no locus in that area.

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

If the result had gone the other way, leavers like me would have unequivocally accepted it—[Interruption.] That is absolutely the case. Therefore the same should be expected of hon. Members who were defeated by the referendum result. Given that they all say that they would vote for article 50 in a vote in the House of Commons, why do we not hold such a vote straight away on a straightforward resolution, so that we can see whether that is sincere or whether they are as cynical as their reaction to the true statement that I made seems to suggest?

[Mr Davis]

My right hon. Friend tempts me, but the proper route for the Government to pursue is to await the outcome of the court case and then act properly under the law.

Exiting the European Union

Debate between David Davis and Julian Lewis

Monday 5th September 2016 Commons Chamber

[Mr Davis]

First, on this issue of detail, the right hon. Gentleman should know well that we are not simply looking at the interests of a limited number of companies and a limited number of banks, which is obviously the issue for the Japanese Government. We are looking at the interests of a whole economy, so it will take just a touch longer. Given his prior experience, he should know that, and he should know it well.

In terms of the position with respect to parliamentary approval, I suspect that a great deal of things will be brought before the House during the course of the negotiation, not just at the end. There will be plenty of opportunity both to speak about them and to vote on them.

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

The very welcome appointment of my right hon. Friend, and indeed of the Foreign Secretary and the International Trade Secretary, certainly shows that the Prime Minister means what she says and that Brexit will really happen. However, some people on the losing side hope to sabotage the result of the referendum by delaying the process indefinitely. Is my right hon. Friend absolutely confident that, come what may, the UK will be outside the European Union well before the date of the next general election?

[Mr Davis]

I have said very plainly that we will not trigger article 50 before the end of this year, but we will trigger it as expeditiously as possible. The article 50 process takes two years. Extending it takes unanimity among every other member of the European Union, and my right hon. Friend can make his own judgment about both the probability of that and the arithmetic that it delivers.

Counter-Terrorism and Security Bill

Debate between David Davis and Julian Lewis

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?

Data Retention and Investigatory Powers Bill

Debate between David Davis and Julian Lewis

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.