European Union (Withdrawal) Bill

Debate between Dominic Grieve and David Davis

Tuesday 12th June 2018 Commons Chamber

[Mr Davis]

With great respect, the hon. and learned Lady is a lawyer, and she knows that the words in an Act of Parliament matter, and matter very precisely, rather more than an individual word—[Interruption.] They matter very precisely. Let me explain why.

As I said, “necessary” is not a synonym for sensible, logical or proper. In many cases, changes such as correcting inconsistencies, changing terminology, removing redundant provisions, or improving clarity and accessibility could be left unmade, even if the consequences were perverse. That is not the best outcome for businesses or individuals across the United Kingdom. I do not believe that their lordships intended to constrain our ability to change the names of documents such as European aviation documentation. Nor do I think that they intended to require us to use cumbersome terms such as “national regulatory authorities of member states”, and then to have to designate our national regulators underneath that. That would be an inefficient way of making Ofcom the regulator for our open-access internet legislation, for example. This will be UK law, applied only in the UK. It would be confusing to businesses and individuals to keep laws that suggest otherwise, but such changes, while appropriate, might fail the “necessary” test.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand the point that my right hon. Friend is making, but I have to say that I am not sure that I agree with him. I think that all the examples that he has given would meet the necessity test without any difficulty at all. Where the necessity test provides a higher bar is that if it were thought that a Minister was using powers to change legislation in a way that was not necessary, he would be prevented from doing so. My right hon. Friend cites examples, but I just do not think that the test would be a problem for a Minister at all.

[Mr Davis]

My right hon. and learned Friend, as I have known for a long time, is a very good lawyer, but I am afraid that other lawyers disagree quite seriously.

The Lords amendments effectively increase the risk of judicial review. What that does—[Interruption]. This is an incredibly serious point, because that process asks judges to make a policy decision that this House should be making by saying yes or no to a statutory instrument. It really is as simple as that.

--- Later in debate ---

[Mr Davis]

If there were no deal for some reason other than the House rejecting it—it is incredibly, almost implausibly, unlikely, but let us imagine that the Government decided that they would not have a deal at all—we would of course do the same thing and come back and make a statement to the House, and the House would then have the right to respond.

[Mr Grieve]

I am grateful to my right hon. Friend for giving way. I recognise some of the problems that he has and why the Government came forward with their amendment in lieu, and some of the deficiencies that can be identified in the Lords amendment. But the simple fact is that the Government have not made provision for no deal, and there is a way of doing it. The amendment that I have tabled provides a mechanism for doing that. One of the key issues for me at the end of this afternoon will be whether we make some progress on having a proper structure to address no deal. I do not think that this Bill can finish its course and get Royal Assent until we have that.

[Mr Davis]

I thank my right hon. and learned Friend for his view on this. He sort of expressed it in an amendment that he tabled late last night, so I only saw it this morning. I have not really had a lot of time—[Interruption.] Well, this is an interesting demonstration of the Labour party’s perception of how easy it is to make constitutional law on the fly. Its own voters will come to a view on that.

Let me say this with respect to my right hon. and learned Friend’s proposed amendment—as he knows, I am always open to have a conversation with him on this although he seems to have fallen foul of my telephone security system—I always want to keep three principles in mind. First, we must never do anything that undermines the Government’s negotiating position, or encourages delays in the negotiations. That is very, very important. Secondly, we cannot change the fundamental constitutional structure, which makes the Government responsible for international relations and international treaties.

EU Exit Negotiations

Debate between Dominic Grieve and David Davis

Monday 13th November 2017 Commons Chamber

[Mr Davis]

I am stating Government policy from the Dispatch Box.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I greatly welcome my right hon. Friend’s statement in respect of there being a statute for us to implement the final deal, but if that is the case—unless my amendment were to be now accepted—it must be right that clause 9 becomes redundant. I do not see how it is acceptable that we should implement Brexit by means of clause 9 to have a statute after the date of our departure. My anxieties are greatly heightened by the extraordinary amendment tabled by the Government on Friday. If we run out of time, surely the answer is none of the suggestions that have been put forward; in fact, the answer is that the time has to be extended under article 50, so that all parties are able to deal with it. That is the mechanism provided, and surely that is the mechanism that the House and the Government should be following.

[Mr Davis]

I thank my right hon. and learned Friend for his welcome of the Bill, but the extension of article 50 can be done only by unanimity, and that is its weakness.

Leaving the EU: Parliamentary Vote

Debate between Dominic Grieve and David Davis

Thursday 26th October 2017 Commons Chamber

[Mr Davis]

I am afraid the right hon. and learned Gentleman altered the quotation from yesterday slightly. What the Chairman said, and I refer to exactly what he put to me, was that “it is possible”—possible—“that Parliament might not vote on the deal until after the end of March 2019. Am I summarising correctly what you said?” I said, “in the event we don’t do the deal until then.” That is the point I was making.

I will take up the right hon. and learned Gentleman’s point about the European Parliament, because I have said at the Dispatch Box and we have said that it is our intent and our expectation—those were the words used; I crafted them—that we will vote on this in this House before the European Parliament does. That stands. If it goes to the timetable that Mr Barnier expects, or wants to go to, which is October 2018, it is likely that the European Parliament will vote in December or January, under the normal processes that apply to that Parliament; it has a committee stage to go through first. We will vote on that and we will have it put before the House before then. There is no doubt about that. That undertaking is absolutely cast iron.

The issue that I raised yesterday, because I take it as a responsibility always to be as forthright and open as I can with the Select Committee, was to go through what has happened in the past in European Union treaty negotiations. This time, there is an expectation by the Commission; there is an incentive on the part of the various countries to get it done as quickly as possible; and there is our expectation and intention. None of the undertakings given at the Dispatch Box have in any sense been undermined. The issue here is one of practicality and what we control. What we control, we will run to give Parliament a proper and meaningful vote at the right time.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I understand my right hon. Friend’s concern about hypothetical situations that might arise at the end of the negotiation, but is not the reality that if the negotiation leads to an agreement, it will be necessary for not only the European Parliament but ourselves to act in accordance with our constitutional principles in deciding to approve it? The only way we can do that properly is by statute in this House. In those circumstances, is not it rather fanciful to imagine that, having reached a deal with the European Union, it would hold us in some strange way to ransom because we pointed out that we needed the time to enact the necessary statute? That flies in the face of reality. It would just tone down the debate a little and introduce a bit of rationality if we understood that our European Union partners would expect us to reach our own conclusion in accordance with our own constitutional requirements.

[Mr Davis]

My right hon. and learned Friend has a point. As I understand it, the reason why Mr Barnier wants to conclude the negotiations, including that element of article 50 that refers to the future arrangements, by October is to enable that ratification process to take place. In that respect, I agree with my right hon. and learned Friend.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and David Davis

Thursday 7th September 2017 Commons Chamber

[Mr Davis]

I will make some progress now, and I will give way a little later. I am conscious of the point made by the Father of the House that time will be tight at least on this day. I will give way as much as is reasonable, but I do not want to dilate too long.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will my right hon. Friend give way?

--- Later in debate ---

[Mr Davis]

I will make some progress now.

Overall, then, the Bill provides for very significant continuity in the law, but there are some elements that simply—

[Mr Grieve]

Will my right hon. Friend give way on that point?

[Mr Davis]

In a moment.

There are some elements that simply will not make sense if they remain on the UK statute book once we have left the EU and in the years and decades to come. It would not make sense, for example, for the Bill to preserve the supremacy of EU law or to make the preserved EU law supreme over future legislation passed by this Parliament. Laws passed in these two Houses after exit day will take precedence over retained EU law.

We also do not believe that it would make sense to retain the charter of fundamental rights. The charter applies only to member states when acting within the scope of EU law. We will not be a member state, nor will we be acting within the scope of EU law, once we leave the European Union. As I said to the House when I published the White Paper on the Bill, the charter catalogues the rights found under EU law that will be brought into UK law by the Bill. It is not, and never was, the source of those rights. Those rights have their origins elsewhere in domestic law or relate to international treaties or obligations that the UK remains party to—for example, the European convention on human rights.

[Mr Grieve]

Will my right hon. Friend give way?

[Mr Davis]

Let me be clear: the absence of the charter will not affect the substantive rights available in the UK. As I have said before at the Dispatch Box, if an Opposition Member or anyone in the House—I am thinking of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve); I will come to him in a minute—finds a substantive right that is not carried forward into UK law, they should say so and we will deal with it.

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[Mr Davis]

I will come to the details in a moment, but there are a number of limitations, one of which is that we cannot impinge on the Human Rights Act 1998. That goes straight to the point that the right hon. Lady raises.

[Mr Grieve]

I understand my right hon. Friend’s point about the charter, because I agree with him that general principles and the charter should be identical—although that does raise the question of why, in those circumstances, the charter should go—but schedule 1 says quite clearly that after we have done this:

“There is no right of action in domestic law on or after exit day based on a failure to comply with any of the general principles of EU law.”

He must agree that that means that the right of the individual to challenge on the basis of the principle of EU law—the law that will be imported into our law by the Bill—will no longer be possible. That is in our own courts—forget about the European Court of Justice. That seems to me a marked diminution in the rights of the individual and of corporate entities.

[Mr Davis]

I am afraid that my old and dear right hon. and learned Friend and I are going to have a difference of opinion. We will put in the Library a letter on this specific issue, as we have already said. [Hon. Members: “When?”] Today. But the simple truth is that these rights, as he should know as well as anybody, have a whole series of origins. Some are from British common law, some are from EU law that we will bring in ourselves, and some are from the European convention on human rights—which, he will note, we are continuing with. All these things will provide those undertakings. Why on earth we need an extra layer of declaratory law I do not know. It was brought in under the Blair Government—perhaps that explains it.

European Union (Notification of Withdrawal) Bill

Debate between Dominic Grieve and David Davis

Ping Pong: House of Commons
Monday 13th March 2017 Commons Chamber

[Mr Davis]

I said before, and I will say it again: I take statements at this Dispatch Box as binding.

The important point here is that the idea that Parliament could force the Government to accept a bad deal will only incentivise those on the other side of the negotiating table to deliver just such a deal. As the Lords European Union Select Committee—hardly a Tory front organisation —said:

“The Government will conduct the negotiations on behalf of the United Kingdom, and, like any negotiator, it will need room to manoeuvre if it is to secure a good outcome.”

[Mr Dominic Grieve (Beaconsfield) (Con)]

No one in this House, as far as I am aware, wishes to fetter the Government’s hands in negotiations, or indeed the Government’s right to walk away from the negotiations; the issue in subsection (4) is whether the Government come back to this House to explain their plan and policy in the event of that happening. I would expect that to be inevitable, and yet, curiously, when we have sought an assurance from the Government—no more than that; not this amendment—that they would do that, which seems to me to be blindingly obvious, we keep being told that they will not give that assurance. I do find that, I have to say to my right hon. Friend, a bit odd, and I wonder whether he could clarify that.

[Mr Davis]

My right hon. and learned—and old—Friend makes a good point. The simple truth here, however, as I have said before, is that nothing can constrain this House’s right to debate and vote on anything it sees fit, and that meets this.

What I am dealing with here is subsection (4), and there are even bigger problems with it. During the debate on this issue in the other House, the author of the amendment, Lord Pannick, himself admitted he did not know what would happen if Parliament voted against leaving the EU without a deal. This uncertainty is itself a strong argument against putting this amendment into statute.

However, a significant number of Lords supported this amendment—that may not be true in this House—such as Lord Wigley and Baroness Kennedy, and they made their intentions clear: if Parliament were to vote against leaving without a deal, the UK should seek to remain in the EU and reverse the result of the referendum. I should say to my hon. and right hon. Friends that the European Union member states and the European Union institutions read the proceedings of this House very closely; they will have read that, and it will have raised their interest, because that is precisely what they would like to happen. So while this has been badged as a meaningful vote, the reality is that there are some who would seek to use it to overturn the result of the referendum. [Interruption.] “Good idea” comes from across the Floor. That is exactly, I am afraid, what concerns us.

The Government and the Prime Minister have been crystal clear. The people of the United Kingdom have decided to leave the European Union. The Government will seek to implement this decision in the way that is most beneficial to both the United Kingdom and the European Union. What we will not do, however, is accept anything that will put the intention to leave the European Union in doubt.

Article 50

Debate between Dominic Grieve and David Davis

Tuesday 24th January 2017 Commons Chamber

[Mr Davis]

I repeat again that the House will have that opportunity over and over and over again, on a whole series of primary legislation and secondary legislation and, finally, with the vote itself. I have not given a great deal of thought to how the timing of that will coincide with the European Parliament, but I will do so and write to the hon. Lady.

[Mr Dominic Grieve (Beaconsfield) (Con)]

My right hon. Friend will be aware that in the course of the court case the Government laid great stress on the irrevocability, in their opinion, of article 50. In those circumstances, I am sure he can understand that the problem facing the House is that in triggering article 50, that irrevocability has to be matched against the excellent words of my right hon. Friend the Prime Minister in setting out a plan that envisages a future relationship with the European Union from outside of it. Will he therefore keep in mind that the debate on article 50 is likely to be greatly facilitated if the ideas expressed by the Prime Minister are put into a White Paper, or similar document, to which reference can be made in the triggering of article 50, without fettering the Government’s discretion in their negotiations thereafter, because ultimately, as he may agree, this comes down to an issue of trust? If the Government can build that trust, they will greatly facilitate their task, and, if I may say so, those such as myself who wish to help them in what they are trying to achieve.

[Mr Davis]

My right hon. and learned Friend—my old friend—tempts me down a certain route, but I will answer him in these terms. In the case, the argument put by the Government did not depend on the irrevocability or otherwise of the legal issue in front of us; it depended on the fact that we view the irrevocable moment as being 23 June last year, and that it is not in the gift of the Government to change their mind, so we have already passed the point of no return. In terms of information, I have said over and over again that I will provide what information I can, and as much information as I can, without undermining our negotiating position, and I will continue to do so throughout the article 50 process and beyond.

The Government's Plan for Brexit

Debate between Dominic Grieve and David Davis

Wednesday 7th December 2016 Commons Chamber

[Mr Davis]

No, I am going to make a bit of progress. I will give way later. I normally like the badinage with the Opposition, but I have to make some progress on quite an important argument.

Dance on a pin as the shadow spokesman may, that is what the Opposition are signing up to: the Government invoking article 50 by 31 March 2017. Let us be clear about that. It has always been our intention, as I said in my intervention on him, to lay out the strategy in more detail when possible, provided it does not undermine the UK’s negotiating position.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will my right hon. Friend give way?

[Mr Davis]

If my right hon. and learned Friend will wait a little while, I will, of course, give way to him.

In fact, I have said that categorically in front of this House and the other House on a number of occasions, including just last week, and I am happy to confirm it again today. Our amendment also lays out an important challenge to those on the Benches opposite who say that they respect the result of the referendum, but whose actions suggest that they are looking for every opportunity to thwart and delay this. We will see today if they are willing to back the Government in getting on with implementing the decision made by the people of the United Kingdom. However, before I address the motion in terms, I will give way to my right hon. and learned Friend.

[Mr Grieve]

May I emphasise to my right hon. Friend that the motion must require Parliament to support the triggering of article 50 by means known to the law? He will doubtless agree that, as the law stands, that requires primary legislation. While it is possible for private Members’ Bills to be introduced, in reality it will be the Government’s duty to introduce legislation if they wish to proceed, and to do that in a timely fashion that enables proper debate on it.

[Mr Davis]

My right hon. and learned Friend, the ex-Attorney General, should know better than to tempt me to comment on a court case that is taking place as we stand here, so I will not do that, but as he well knows, we will obey the rule of law; we will obey what the Court finds. We will ensure that we do the right thing. As the spokesman for the Opposition said, one of the reasons we are waiting on the outcome is to get precisely right what it is this House has to do.

Exiting the European Union

Debate between Dominic Grieve and David Davis

Monday 5th September 2016 Commons Chamber

[Mr Davis]

We did—it was called the referendum Act, which was passed by a ratio of 6:1 in this Parliament.

[Mr Dominic Grieve (Beaconsfield) (Con)]

First, may I congratulate my right hon. Friend on his complete and abysmal failure over a 10-year period to avoid high office? It is a great pleasure to see him in his place. May I also reassure him that as somebody who supported the remain campaign, I see it as my absolute duty to support the Government in giving effect to the public desire to leave the European Union, including supporting the Government in their implementation of article 50? He rightly pointed out that the matter is legally extremely complex. It also concerns, as he rightly said, the acquis communautaire, which is about the conferring of private legal rights on individuals in this country which have the force of statute. I have to say to my right hon. Friend that the idea that those should simply be revoked by our exit without parliamentary approval troubles me very much and appears to me to be an abdication of the responsibility of this House. I accept that in many cases they have been created by Henry VIII clauses, which was the unsatisfactory nature of the EU, but what we will now do if we cannot scrutinise them before article 50 is invoked is allow the Government to dispose of private property rights, including intellectual property as an example, by decree. That troubles me very much, and I ask him to use his ingenuity to find ways of resolving this particular dilemma.

[Mr Davis]

It is a pleasure to hear from my right hon. and learned Friend and long-term friend, but he is over-interpreting what I have said, I think. Article 50 is the beginning of this process; it is not the end. I know there will be many opportunities for this House to scrutinise what we are about to do after article 50 takes place, but it would be somewhat futile to do so before we start the negotiations, as some of those negotiations will have a direct impact on the very rights that he is talking about. He can take it from me that I did not spend all those years on the Back Benches defending those rights to give them up now.

Report of the Iraq Inquiry

Debate between Dominic Grieve and David Davis

Wednesday 13th July 2016 Commons Chamber

[Mr Dominic Grieve (Beaconsfield) (Con)]

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

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

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

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

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

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

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

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

[Mr David Davis]

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

[Mr Grieve]

I simply quote from paragraph 810 of the executive summary:

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

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

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

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

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

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

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

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

Investigatory Powers Bill

Debate between Dominic Grieve and David Davis

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Mr Grieve]

I think my hon. Friend makes a good point. I have an underlying confidence that the amendment we are discussing might commend itself to those on the Government Front Bench. On that basis, I do not intend to labour this point any further. I felt it was important to set it out, however, because it marked a significant shift in the Committee’s approach to this legislation. I wanted the House to understand why that change had come about after we had been given the extra classified briefing and why we came to the conclusion that we should accept this principle, alongside essential safeguards.

[Mr David Davis]

I have not read the individual amendments, so I am flying blind here. However, there is no doubt that this power is the most intrusive power in the Government’s armoury. One of the problems historically has been that the sheer volume of work being conducted means that scrutiny and oversight can sometimes slip. Would my right hon. and learned Friend’s amendment actually require the investigation of every single bulk intervention?

[Mr Grieve]

The amendment would require that

“the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”

In our view, it is crystal clear that such a provision would meet the needs that we have expressed. As I have said, the Committee has been satisfied that the rules relating to bulk interception are adequate to provide the necessary safeguards. So, as long as we apply identical standards to equipment interference, the Intelligence and Security Committee believes that this process could be made to operate properly.

English Votes for English Laws

Debate between Dominic Grieve and David Davis

Wednesday 15th July 2015 Commons Chamber

[Mr Davis]

I rest my case. Let me make some progress.

[Mr Grieve]

Will my right hon. Friend give way?

[Mr Davis]

I suddenly find myself in a courtroom, rather than the Chamber, but I give way.

[Mr Grieve]

I was going to make this point later, but I may as well make it now because that is the purpose of debate. I must say that I have some slight anxiety about the justiciability of measures that we take in this House. I appreciate article 9 of the Bill of Rights, but we are certainly moving into rather uncharted territory and I do not think we can rule out legal challenges to decisions on the Speaker’s certificate.

[Mr Davis]

The House will take that on board.

My other point about what the Leader of the House has done so far is to commend him on at least attempting to address the problem of the Barnett consequentials. This is very important for the point on which I will finish. The problem started in 1998. I guess that the right hon. Member for Gordon (Alex Salmond) will remember—no one else in the House would have reason to do so—that in 1998 I argued for fiscal autonomy for the new Scottish Parliament, for a more federal solution and for proper treatment of the West Lothian question. All those things were self-evident in 1998 as long-term problems with the devolution proposal. I must say to Opposition Front Benchers, that our points were received with a completely implacable lack of understanding, let alone a lack of sympathy, from the primary driver of that, Gordon Brown.

The problem arises from the confusion in the Scotland Act and the Scotland Bill that is currently going through the House. The 1998 Act failed to create what, in my view, would have been stable fiscal autonomy for the current Holyrood Parliament. It would have done so if it had separated out the funding streams for the Scottish Parliament’s spending and the spending that emanates from this Parliament. If that had been done, we would have had very few, if any, Barnett consequentials.

We cannot of course solve everything. The right hon. Member for Gordon has quite rightly made the point about other impacts, such as in relation to tuition fees. There will be tax competition between the parts of the United Kingdom, and competition between policies of various sorts. We cannot resolve all that. We cannot necessarily give Scottish Members some sort of veto over England’s right to do the best for its citizens. This is not entirely soluble, but it would have been much more soluble if we had written the Scotland Act in such a way that it created a more rational structure than what exists in our kingdom at the moment.

All that gives us and the Leader of the House the problematic issue of how this can be done with utter fairness to all sides, because that is the test. I am afraid that the British establishment always seems to have a preference for fudge rather than clarity and for ambiguity rather than logic. We see that written through all this constitutional area, because the establishment does not want to address the problem. The establishment does not want an English First Minister who is more powerful than the UK Prime Minister. Yet if we went down a proper route of English devolution—if that is what it is—we would of course end up with an English Government who were a challenge to the UK Government.

The Leader of the House has now given us the summer to think about this. We can, I hope, deliberate about it at great length before we return in September, and I hope that he will take on board what he hears today. The only point of principle I will make to him is that the test for this is very simple. It is not whether this creates two classes of MP, but whether it creates two classes of citizen. The test is whether it deals with and removes any prospective grievance not from the Members on the SNP Benches, the Labour Benches or the Government Benches, but from the people we represent. It should take away any grievance for the English, the Scots, the Welsh and the Northern Irish, not any grievance for the Labour party, the Conservative party, the SNP or the Liberal Democrats. The test he should apply is whether it puts our citizens first.

Debate on the Address

Debate between Dominic Grieve and David Davis

Wednesday 27th May 2015 Commons Chamber

[Mr Grieve]

I shall make progress, if I may.

On matters concerning the Union of the United Kingdom, I am a Unionist to my fingertips. I could not be otherwise, with my family’s Scottish heritage. It has always seemed to me that the key to the Union of the United Kingdom is that the interests of an elector, be it in Belfast, Cardiff, Edinburgh, Glasgow or indeed where my family comes from, in Hawick, must be of equal importance to me as that of my own electorate in Beaconsfield, but the forms which the Union can take may be diverse. To that extent, I entirely welcome the fact that further devolution to Scotland and to Wales will take place, and I look forward to participating actively in the debates on that.

I listened carefully to what was said from the Scottish National party Benches about SNP Members’ concerns that constitutional change might take place by changing the Standing Orders of the House. This is a somewhat esoteric constitutional law point, but there are arguments that that is probably the only adequate way in which it can be done. If I can provide some reassurance, it seems to me to be central to any such change—the point was well made—that the interests of Scotland, both directly and indirectly, have to be respected, and it can apply only to those matters which pertain strictly to England, England and Wales or other parts of the United Kingdom. I look forward to having that debate, listening carefully to hon. Members’ participation and trying to make sure that we can put together a structure which is durable and, above all, fair—fair to them, but also fair to my constituents, for whom this is an issue which matters quite a lot as well.

I note the Government’s enthusiasm for continuing with high-speed rail. I am mindful that the House has expressed a determined view on this point. It is not one which commends itself much to my constituents, and the cost-benefit analysis of it has always eluded me. Nevertheless, I shall try to ensure, on their behalf, that the mitigation that they seek is provided, and in particular that there is a rigorous analysis of the costs of tunnelling under the River Colne, as opposed to the viaduct—a difference in value which seems to be narrowing by the day. I hope I may be able to interest the House in that.

Before moving on to my main topic, I want to touch briefly on the communications data Bill. In my view it is absolutely required. During my time as Attorney General I had a great deal to do with the agencies, and I am satisfied that they try to operate to high ethical standards. I am also satisfied that the Regulation of Investigatory Powers Act 2000 is inadequate to meet the needs of the modern age. However, I am also mindful of the fact that the public require reassurance in relation to civil liberties. I believe that it will be possible to do those two things during the Bill’s passage.

[Mr David Davis]

How does my right hon. and learned Friend reconcile that with the fact that our primary ally, the United States, with its National Security Agency, which entirely mirrors GCHQ, is as we speak moving away from the block collection of data and treating that as wholly unconstitutional?

[Mr Grieve]

I have to say to my right hon. Friend that I do not believe that GCHQ has been engaging in the block collection and retention of data for the purpose of subjecting it to examination at a level that intrudes upon privacy. If he reads the comments made by Sir Iain Lobban when he gave evidence, he will see that it is clear what they were about. That said, my right hon. Friend makes an important point, and one that we will have to address. If there are other ways in which it can be better addressed, I for one would be only too happy to see those being looked at. However, I am also mindful, from my own experience in government, that some of the comments made in that regard seem rather far-fetched.

Let me turn to one of the key issues in the Gracious Speech: the suggestion that we will replace the Human Rights Act with a British Bill of Rights. At this stage I will simply make two or three points. First, I welcome the fact that the proposal has not been set in stone, fortunately, and that it appears we will be having a consultation. The proposal will be very difficult to implement in practice, and the reputational damage for this country could be disastrous. Let us start with the first and most obvious point, which is the fact that the devolution settlements in Scotland, Wales and Northern Ireland are underpinned by the Human Rights Act—it might be an inconvenient truth for some, but it is still a truth—and, in the case of Northern Ireland, by an international treaty with the Irish republic. I do not see how we can effect a change without first achieving a consensus that involves those parts of the United Kingdom, even if we have the power to do so, because it seems to me that to proceed without it would threaten the Union, which I was sent to this House to uphold.

Secondly, if we are to proceed down this route, the EU dimension needs to be considered. My hon. Friend the Member for Stone (Sir William Cash) has waxed eloquently against the charter of fundamental rights. I cannot think of anything more calculated to see the intervention of the European Court of Justice—not the European Court of Human Rights—than if we end up being non-compatible with the convention and EU citizens end up bringing claims against the United Kingdom Government that cannot be adjudicated under the convention in our own courts or in Strasbourg.

Thirdly, the United Kingdom has been at the forefront of the development of human rights on our planet; it is one of the things of which we can be most proud. If we are going to dilute those rights and present the British public with something that is, in fact, the convention shorn of some of the protections it affords citizens, the consequences for the convention will be catastrophic. But other countries that have previously been willing to improve their human rights records, as a result of our leverage, will cease to do so, and one of the most powerful tools for improving human rights on our planet will have been irrevocably damaged. I find it impossible to see how that can be in our national interest.

Having said those things, I also recognise that there are flaws in the way in which the Court in Strasbourg has operated. I have many criticisms of some of its jurisprudence, and there was a period in recent years when it was quite seriously off the rails. However, one point that needs to be borne in mind is that we have recently carried out a major reform of the way the Court operates, thanks to the efforts of my right hon. and learned Friend the Member for Rushcliffe (Mr Clarke). Our judiciary has changed its stance and approach to the Court, so there is now a much more robust dialogue. Consequently, the Court has substantially changed many areas of its approach. The ultimate irony is that we might be in danger of fighting yesterday’s battle, or indeed of snatching defeat from the jaws of victory. I therefore very much hope that there can be a full consultation so that all these matters can be aired.

John Downey

Debate between Dominic Grieve and David Davis

Wednesday 26th February 2014 Commons Chamber

[The Attorney-General]

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

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

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

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

[The Attorney-General]

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

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

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

Injunctions

Debate between Dominic Grieve and David Davis

Monday 23rd May 2011 Commons Chamber

[The Attorney-General]

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

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

The Government have also

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

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

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

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

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

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

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

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

[The Attorney-General]

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

Voting by Prisoners

Debate between Dominic Grieve and David Davis

Thursday 10th February 2011 Commons Chamber

[Mr Davis]

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

[The Attorney-General (Mr Dominic Grieve)]

Will my right hon. Friend give way?

[Mr Davis]

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

[The Attorney-General]

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

[Mr Davis]

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

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

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

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

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

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

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