Lawfare and UK Court System

Debate between David Davis and Robert Neill

Thursday 20th January 2022 Commons Chamber

[Sir Robert Neill]

Absolutely. The regulations dealing with the solicitors profession have very considerable requirements to track the source of funds. They apply from the basic level of a conveyancing transaction, all the way up to funding for the most complex litigation. We should not mischaracterise the position by saying that there is a high level of cynicism in the legal profession; there is not, and I do not believe that there is a failure of regulation either.

[Mr David Davis]

As has already been said, my hon. Friend is infinitely more expert in these things than most of us. May I bring him back to the matter of Mr Hugh Tomlinson and other firms? The answer to this may be to look very closely at the tactics put together by these firms, which put them in the very profitable commercial niche that I was talking about. If we were to judge that those tactics were unfair and unjust, that would solve the problem of firms or individuals appearing in more and more of these oppressive cases.

[Sir Robert Neill]

Let us put it this way: Parliament may decide as a matter of policy that certain behaviours are undesirable and should be constrained by law. The courts would faithfully apply any law on the subject that Parliament passed. That is the right way, in my judgment, to deal with this. That relates, too, to the law regulating the professions. For the reasons I gave, we should be very wary of fettering lawyers’ ability to defend unpopular clients, which is not the same as unmeritorious clients. Remember why that is: there are many instances where injustice has been prevented by lawyers taking on an unpopular client and an unpopular cause. That is the point on the other side that we have to weigh in the balance before we go entirely down the path of saying that because we disapprove of someone, we should deny them redress in law.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between David Davis and Robert Neill

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage & Report stage: House of Commons
Thursday 15th October 2020 Commons Chamber

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

It is a pleasure to follow the right hon. Member for Orkney and Shetland (Mr Carmichael) and I very much agree with a great deal of what he has said. I hope the Minister will be able to prove to us why it is not necessary to pursue some of these amendments, but I think the right hon. Gentleman put his case very well and very moderately. I appeal to the Minister, who is himself a moderate and considered man, to think about whether it is not appropriate to look at some of the detail of the Bill rather than the thrust of the objective, which we all absolutely support.

I will, if I may, touch on some of the amendments. The broad principle that I have, again rather like the right hon. Gentleman, is that, of course, there will be certain circumstances when it is necessary in the national interest for the brave operatives of our security services to have the power to take actions that might not otherwise be countenanced in the ordinary run of life. I accept that, sometimes, there are people who have put their lives on the line for the country’s sake and that there are circumstances in which they are entitled to protections. I do not have any problem with that, but it is the broad breadth nature of the Bill that is a concern to many of us. Those of us who have served in Government have come across those tempting occasions when submissions come along, and civil servants say, “It will be useful to draw on this widely, Minister, because x, y or z circumstance may occur at some point in the future, so it is better to have this in reserve—in the back pocket.” When one is dealing with things that touch on the exceptional circumstance of the state or its agents being permitted to break the criminal law, or potentially do harm of one kind or another—perhaps out of necessity, but none the less do harm to others—we should be pretty tight in circumscribing those instances as far as we can. We should ensure that, at the very least, there is proper oversight either beforehand when it is appropriate or thereafter by way of proper parliamentary scrutiny—I will come back to that in a moment.

That is why I do not take the line of the official Opposition’s amendment that there should always be pre-authorisation, but I do think, as a basic principle, that there ought to be pre-authorisation at the appropriate level, be that by the judicial commissioner, a prosecutor or another appropriate authority, wherever possible. That ought to be the starting point unless there is some ground, such as a matter of emergency, perhaps literally of life or death, or of the highest importance, where it is not possible to do that. I would like reassurance from the Minister on the test that will be applied as to when these powers will be used, prior to authorisation by a responsible, vetted and highly dependable individual of the kind that we are talking about. That is the first point on which I would like the Minister’s reassurance, and the point about guidance is well made, as far as that is concerned.

My second point, on amendment 20, which has been referred to, is on the position of the exclusion of civil liability. Again, there may be certain circumstances where it is appropriate for agents of the Government to act in a way that may cause some harm to others. A lot of people might not have too much concern if the target of the operation is an organised criminal or a terrorist, or someone who is a threat to us all, but I am concerned that the way in which that particular clause is drawn would also prevent the innocent victim of what might have been an otherwise necessary action—a person who is the collateral damage—from seeking civil redress. I am talking about somebody who was not the target of the steps that were taken but was caught up, literally, in the incident that occurred. Is it really fair or just to say, “Well, that’s just hard luck,” and exclude them from any liability?

The number of cases that this might engage are probably very limited, but the principle is important—someone who has done no harm to the state should not be the victim by happenstance of something that might necessarily and properly have been done in the state’s interests. If we give the state and its agents that power—perhaps reasonably enough—it is not unfair to say that there should be some safeguard for those who, through no fault of their own, might be damaged by it in some way. I hope that the Minister will reflect on that carefully.

There is also the point in the amendments that touches on the authorisation of certain very grave crimes. I appreciate what the Minister said about the intention that our adherence to the Human Rights Act—which I was glad to see the Lord Chancellor restate the other day—is protected, but if that is the case, and given the importance of the subject, why not put that on the face of the Bill? What is lost by that? Should at any time any future Government—I hope not this one—ever derogate in any way from the Human Rights Act, it would be better to have the protection there. My next point is about the scope of the agencies. As the right hon. Member for Orkney and Shetland said, it is pretty difficult think of what types of extreme violence might be authorised in the national interest by the Food Standards Agency? Some greater particularity around that would not be a bad idea either.

I will touch on the point that arises from amendment 13, which is in the name of my right hon. Friend the Member for Haltemprice and Howden (Mr Davis) and others. It is important because, if we are attempting to adopt a similar approach to our important security partners, why not adopt the same approach that is appropriate in the United States or, I would say, perhaps even more persuasively, Canada? It is a Commonwealth and common law jurisdiction country, which has had no difficulty operating a security regime like our own, with operational efficiency but equal concern for protection against abuse. It has found it perfectly possible to work within a statutory parameter of the kind that is suggested. I would like to understand from the Minister a little better why he thinks that that is not appropriate and why that might not be a safeguard to brave operatives under certain circumstances against the bringing of an unjustified complaint or litigation against them.

[Mr David Davis]

One distinction between amendment 13 and others is that it gives the Director of Public Prosecutions the right to make a judgment. Even if a person has behaved very unlawfully and committed serious crimes, the DPP is allowed to exempt him if he was in fear of his life.

--- Later in debate ---

[Mr Davis]

The right hon. Gentleman is right, and we should not forget that the clause that was used requires ministerial approval, not approval by an officer under the pressure of, as it were, almost the battlefield sometimes. A Minister in Whitehall approved it, and it still happened. There were two sets of inquiries into those problems, one by Lord Stevens, who is nobody’s softy, and one by Sir Desmond de Silva. The latter concluded that the problems required some recognised limits to the extent to which agents should become involved in criminal enterprises and a rigorous regulatory framework to prevent abuses—not a woolly reference to the Human Rights Act.

[Sir Robert Neill]

I am glad that my right hon. Friend is making a powerful speech, referencing not only Lord Stevens of Kirkwhelpington but the late Sir Desmond de Silva, whom some of us knew personally and who came up with his conclusion from his long experience at the criminal Bar and also the experience of being a prosecutor in the international war crimes tribunals. He was certainly no soft touch, and he was used to going after bad people, but believed it was necessary to do so within proper constraints.

[Mr Davis]

My hon. Friend is absolutely right. Sir Desmond did something else in his report: he quoted Lord Atkin, who, in a landmark case during world war two, said that

“amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”

I am afraid that the Bill, necessary as it is, does not meet that test, and that is the problem.

Private International Law (Implementation of Agreements) Bill [Lords]

Debate between David Davis and Robert Neill

2nd reading & 2nd reading: House of Commons
Wednesday 2nd September 2020 Commons Chamber

[Sir Robert Neill]

We all need clients!

[Mr Davis]

I am the client of the House today.

The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the very important point that these prospective pieces of legislation, only under secondary legislation, could actually create criminal offences and therefore impinge directly on the rights of our citizens. They could, when I think about it, even put the rights of those citizens under foreign laws, as has happened with the European arrest warrant and other such measures. Does my hon. Friend think that that specific test of whether it creates a criminal offence that might impinge on our citizens might require rather more than simply secondary affirmative legislation?

Oral Answers to Questions

Debate between David Davis and Robert Neill

Thursday 2nd November 2017 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

The president of the European Free Trade Association court will visit London later this month. Will my right hon. Friend the Secretary of State take that opportunity to explore with him the potential that that court might offer a means of resolving potential legal disputes and other matters of resolution in a transitional future arrangement?

[Mr David Davis]

Actually, I have already met the president of the EFTA court. He has come to see me before and is a very—how can I say it?—enterprising individual who I think wants to get more business for his court. We will of course look at all options. I do not think the EFTA court is likely to be the one that we land with, but when we go through the whole question of arbitration mechanisms, which we will need to have, we will of course look at all options.

EU Exit Negotiations

Debate between David Davis and Robert Neill

Tuesday 5th September 2017 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

I was grateful to the Secretary of State for referring specifically to the progress made on civil and commercial law co-operation. Does he agree, however, that it is imperative that there is early clarity on one specific area—whatever the final outcome of negotiations, there should be early clarity on reciprocal recognition and enforcement of judgments and court orders? Unless that happens, firms will not be willing to enter into contracts for any period that runs over either the date of leaving or any of the likely transition periods that have been posited so far. It would be in both sides’ interests to have that.

[Mr Davis]

My hon. Friend is right—that is very high on the priority list.

Oral Answers to Questions

Debate between David Davis and Robert Neill

Thursday 27th April 2017 Commons Chamber

[Mr Davis]

It is interesting that the Scottish National party wants to give €60 billion; I had not realised that up until now.

[Robert Neill (Bromley and Chislehurst) (Con)]

My constituents in Bromley and Chislehurst welcome the emphasis given to financial services, our largest employer. Does the Secretary of State also recognise that financial services are important to the Crown dependencies, which require protocol 3 access, which will be lost upon our leaving the EU, and also to the British overseas territory of Gibraltar? Will he make sure that those two key areas also get the full benefit of our ambitious free trade deal?

[Mr Davis]

My hon. Friend is just about old enough to remember that I have had to defend Gibraltar before. We succeeded then; we will succeed now.

Legislating for UK Withdrawal from the EU

Debate between David Davis and Robert Neill

Thursday 30th March 2017 Commons Chamber

[Mr Davis]

The hon. Gentleman should know better. The Leader of the House, who was previously a Europe Minister, was here and he made it clear, in terms, that the Prime Minister was talking about the fact that existing treaty arrangements, which will end when we leave the European Union, will fall by the wayside, so we will have to find an alternative—not our internal legal rights and privileges, but the treaty arrangements. That is the important thing.

[Robert Neill (Bromley and Chislehurst) (Con)]

I very much welcome the pragmatic approach that the Secretary of State has adopted in this document, and particularly his emphasis on legal certainty and continuity, which we all know is vital for continued business confidence and is something the Select Committee on Justice report emphasised. Does he agree that it will be important to maintain the mechanism for ensuring continuing regulatory equivalents, not only in data protection but in important areas such as the financial and other service sectors? How might that be taken forward?

Oral Answers to Questions

Debate between David Davis and Robert Neill

Thursday 9th March 2017 Commons Chamber

[Robert Neill (Bromley and Chislehurst) (Con)]

The UK legal services sector is worth some £21 billion to our economy. A good percentage of that comes from legal services provided into the European Union. Will my right hon. Friend meet the Bar Council and the Law Society to discuss what they need to retain access to that key market?

[Mr David Davis]

The short answer is that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Worcester (Mr Walker), has already met them, but we will do so again. This is a very important sector. People sometimes underestimate the size of the general services sector, which is as big as the City. We have to keep that in mind.

Article 50

Debate between David Davis and Robert Neill

Monday 7th November 2016 Commons Chamber

[Mr Davis]

I referred to the Northern Irish case, which the Government won, and the decision about whether to leapfrog it will be made tomorrow. I am entirely aware that this is a very wide constitutional issue that has to be resolved properly. That is one of the reasons I am resisting calls to do something before the Supreme Court rules on the issue. That is the proper place for the decision to be taken.

[Robert Neill (Bromley and Chislehurst) (Con)]

I am glad that the Secretary of State has characterised the decision as being a judgment. The judges were asked to answer a legal point of significant importance and they did so, rightly and faithfully, in accordance with their oath. Does he, therefore, agree that it is important for our reputation after we have left the European Union that all of us speak up for the independence of the judiciary and, above all, that we do not regard freedom of expression in the press as any excuse for personal, abusive and, frankly, disgraceful innuendo being raised against individual members of Her Majesty’s judiciary? That undermines us all.