European Union (Withdrawal) Act

Debate between Dominic Grieve and Keir Starmer

Monday 25th March 2019 Commons Chamber

[Keir Starmer]

That is a very important intervention. Obviously, discussions will take place in the next two days, but the basic proposition that the House needs to decide the substance of any deal it might be able to support—and, arguably, to look at the process around it separately—is important, because some of these options are not like-for-like options, in that some are about substance and some are about process. It would be perfectly possible to make the argument that, if there is to be a deal, it ought to be what we consider to be the least damaging deal. We could have an argument about what that looks like. Equally, it would be possible to say that, whatever deal there was at the end of that exercise, it ought to be subject to the lock or safeguard of some sort of confirmation vote. I do not know. I am not anticipating how the votes would go, but I can see that one of those decisions is about the substance of the issue and the second is about the process. We are going to have to grapple with that before Wednesday.

[Mr Grieve]

I agree entirely with what the right hon. and learned Gentleman has just said, as indeed I agree with the question to him from my right hon. Friend the Member for Putney (Justine Greening). He may also agree that it is going to be important, in the course of this debate and how we structure it, that we make sure we can provide reassurance that Members can vote for what they see as preferred outcomes without in any way having the sense that they might be forfeiting the right also to the insistence that that has to go to the public, whatever it might be.

[Keir Starmer]

I agree with that because otherwise we inhibit the likelihood of finding a majority. Therefore, that will require careful thought going into Wednesday.

Let us assume, for the moment, that we can find a process that most Members are content with and that we can then move towards a majority view. It may take some time. I, for one, am troubled by the idea that, in one afternoon, all of this can be solved. It may be that all we can do is start down a process of finding a majority. It would be wrong to rush at this at this stage of the exercise. But assuming that can be done, it raises the million-dollar question: if the House does find a majority, will the Government accept the result?

I understand and respect the position of the Prime Minister, who says, “I need to know what the options are and what the result is before I can answer that question.” I understand the logic of that and it is a fair point, but what I do not want is—wrapped up in that perfectly reasonable, logical answer—to find, in a week or two, or whenever it may be, that whatever outcome is agreed upon by a majority it will never be accepted by the Government and we are back to where we started. That is my concern about the exercise. So when the Government say they will go into it in good faith, that has to mean that, if there is a majority, the Government will look very seriously at supporting where that majority view is and not simply rule it out. The red lines are the very thing we are trying to break. If the Government apply their own red lines to any outcome and say, “It does not fit our red lines”, there is not much point going through the exercise in the first place because it is precisely to remove those red lines that we are going forward.

Article 50 Extension

Debate between Dominic Grieve and Keir Starmer

Wednesday 20th March 2019 Commons Chamber

[Keir Starmer]

I will give way twice.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I am grateful to the right hon. and learned Gentleman for giving way. Just going back on his point—and he may agree with this—it is apparent that the remarks of the Chancellor of the Duchy of Lancaster were made not just out of the air, but in order to explain and justify the Government’s wording of that motion, which came in for a considerable amount of criticism as appearing to be opaque. He may agree with me that the words uttered at the Dispatch Box could be taken authoritatively as the Government’s assurance about what they intended to do.

[Keir Starmer]

I do agree with that. The reputation of the Minister for the Cabinet Office in this House is that he is someone in whom others invest assurance and confidence because of what he says and the way in which he says it. It may also have been some preparation for the meaningful vote to come back this Tuesday with the message, “If you don’t vote for it next Tuesday, then the Government will have to apply for a different extension.” There was at least that dual purpose.

UK’s Withdrawal from the European Union

Debate between Dominic Grieve and Keir Starmer

Thursday 14th March 2019 Commons Chamber

[Keir Starmer]

I accept that, and it is there in that paragraph. What I am saying is this: it is a nuclear option to crash a whole treaty, including everything in it. That has consequences in international law. If you crash a treaty, you can be taken to court and challenged on it. Everything would be crashed. All the citizens’ rights that have been agreed—crashed; all the trading arrangements—crashed; the transition period—crashed. Are we really suggesting that that is the credible basis for a further meaningful vote?

[Mr Dominic Grieve (Beaconsfield) (Con)]

I agree with every word the right hon. and learned Gentleman says. This is a unicorn; it cannot happen unless so seismic a failure were to take place with the other party that it could be justified. The idea that, simply because the backstop is still in place, it could justify bringing down the whole treaty under article 62 is so far fetched that there can be no doubt, if it was ever contemplated, that that is why it was left out, because it is an unsustainable argument.

[Keir Starmer]

I could not agree more. I suspect that that is why it was left out, in any meaningful sense, from the advice last week. We will wait to see what the Attorney General says if there is a meaningful vote next week. If the idea is to bring back the meaningful vote with the suggestion that what has changed in a week is that we now know we can crash the entire treaty, we will wait for that argument to be presented, but I am not sure it will be persuasive to those whom the Government hope to get back on board with their deal.

UK’s Withdrawal from the European Union

Debate between Dominic Grieve and Keir Starmer

Wednesday 13th March 2019 Commons Chamber

[Keir Starmer]

I give way to the former Attorney General, the right hon. and learned Member for Beaconsfield (Mr Grieve).

[Mr Grieve]

Does the right hon. and learned Gentleman agree that the difficulty with the Government’s motion is that it is in fact inaccurate? The fact is that the default position, indeed, applies only if we do not ratify or choose to revoke, which one could do either by our own motion or after a referendum, for example. That is why—he may agree with me—suspicions have been raised in the House that the motion is slanted. That may be unintentional, but of course it is within the power of the Government potentially to remedy that with a manuscript amendment to their own motion before this debate is over.

[Keir Starmer]

I am grateful for the right hon. and learned Gentleman’s intervention and agree with his interpretation. I think it would be helpful to have the motion amended. One thing that has not helped is the House making a decision only to find weeks later that the decision we thought we had made is called into question. I invite clarity on that, so that we can express a clear view.

UK’s Withdrawal from the EU

Debate between Dominic Grieve and Keir Starmer

Wednesday 27th February 2019 Commons Chamber

[Keir Starmer]

I was and I have. I have visited that border many times. I visited it with the Police Service of Northern Ireland many times when I was working there for five years—as it policed the area around the border, which has particular issues—and I have been there since on a number of occasions. I am well aware of the nature of that border. I am also well aware of the fact, in relation to that border, that it is a mistake to think that the only issue is, technically, how to get people or goods over a line in the road. That border is the manifestation of peace: it is a settlement between two communities. Therefore, the very idea that this is just a technical exercise does not understand the nature of that border.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It goes beyond that, does it not? The right hon. and learned Gentleman may share my anxiety that this issue seems to be consistently ducked. We have a pre-existing international treaty with Ireland that places obligations on us in respect of the border. I do worry, and he may share this anxiety, that in this House this is constantly brushed under the carpet, whereas as we are a rule-of-law state that believes in the international rules-based system, we cannot depart from that without reneging on such obligations.

[Keir Starmer]

I am grateful for that intervention and I agree with it.

This is really the heart of it: we know what the problem is, we know what the House thinks about the backstop and we know that there is an unlikelihood that those problems are going to be addressed in the next 14 days. When the Prime Minister lost the first meaningful vote, she had a clear choice. Choice 1 was to plough on with the failed deal in the usual blinkered way, and eventually put the same deal back to us. That was option 1. Option 2 was to drop her red lines, and negotiate changes that were credible with the EU and could command a majority in this House. The Government have chosen the first course—blindly ploughing on, rather than really engaging—and, as we have seen from the last few weeks, that path leads nowhere.

That is regrettable, because there is an alternative, and I want to address amendment (a). We have set out this alternative repeatedly over recent months. It was set out in full in the letter from the Leader of the Opposition to the Prime Minister on 6 February, and it is spelled out in today’s amendment (a). I remind the House that the focus of the changes we are calling for are to the political declaration, not the backstop.

The changes are to negotiate a permanent and comprehensive UK-wide customs union. That is the first part. Why is that important? Because it is essential for protecting manufacturing, particularly the complex supply chains, and to avoid the hard border in Northern Ireland. I know that those on the Government Front Bench have, like me, gone to many of the big manufacturing companies to discuss with them their complex supply chains and how anxious they are about protecting the customs union arrangements that allow them to do that. As I said, it is also essential to avoiding a hard border in Northern Ireland.

EU Withdrawal Agreement: Legal Advice

Debate between Dominic Grieve and Keir Starmer

Tuesday 13th November 2018 Commons Chamber

[Keir Starmer]

No, I am not. I think I would be right in saying that if any advice was shared outside the ring of confidence, confidentiality would fall away as a basis for non-disclosure to the House. That must be right in principle; it cannot possibly be right that some in this House have seen bits or all of the advice and others have not.

[Mr Grieve]

I agree entirely with the right hon. and learned Gentleman. If the advice were prepared for the Cabinet in order for it to act collectively in taking its decisions, but it were then shared more widely outside, I agree entirely that it ought to be shared with every Member of this House at that point.

[Keir Starmer]

I am grateful for that intervention. I had the privilege of working with the right hon. and learned Gentleman when he was Attorney General, so I know how carefully he attended to his work.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Keir Starmer

Wednesday 13th June 2018 Commons Chamber

[Keir Starmer]

It is a significant amendment, and it was also a significant amendment in the Lords. Even as amended—taking it back to being closer to the wording of the phase 1 agreement—the amendment is still a very significant measure.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It also goes further than that, does it not? Not only will we have to stay in a form of customs arrangement amounting to a union, but we will also have to have a high level of regulatory alignment. Otherwise, the life that takes place along the border will be impossible because of different regulations on either side.

[Keir Starmer]

I agree, and I will develop that argument, because a customs union alone will not solve the conundrum of how to keep to the solemn commitment to having no hard border in Northern Ireland.

--- Later in debate ---

[Mr Grieve]

The right hon. and learned Gentleman is making a very powerful case. I can tell him that Government Members should also be concerned about this matter. I am sure he agrees that it is perfectly possible to carry out Brexit—without incorporating the charter of fundamental rights, which I know is a subject of difficulty—while at the same time securing these rights through this perfectly sensible amendment.

[Keir Starmer]

I am grateful for that intervention. I would have thought that this is not controversial. The Prime Minister said that she did not want to reduce these rights, and we take her at her word, but if the Government convert them into a form in which they lose their protection, they make them vulnerable. I would have thought that any Government who want to change these rights would have the decency to do that through primary legislation so that this House can carry out the proper scrutiny process. It is very straightforward.

I now turn the charter of fundamental rights. Through the Bill, thousands of EU provisions are being converted into our law—only one is not being converted. All the others can be converted, changed, modified or brought into our law in some shape or form, but the charter apparently cannot be converted, and that is wrong in principle.

European Union (Withdrawal) Bill

Debate between Dominic Grieve and Keir Starmer

Thursday 7th September 2017 Commons Chamber

[Keir Starmer]

I am grateful for that intervention and agree with it.

May I move on to other rights, because they are dealt with more severely? Clause 5(4) singles out the charter of fundamental rights for extinction. There are thousands of provisions that are being converted into our law and will have to be modified in some cases to arrive in our law, but only one provision in the thousands and thousands has been singled out for extinction—the charter of fundamental rights. As the right hon. and learned Member for Beaconsfield (Mr Grieve) argued in an article published yesterday, the principles of the charter provide

“essential safeguards for individuals and businesses”.

That has been particularly important in the fields of LGBT rights, children’s rights and the rights of the elderly.

The Secretary of State asks why this matters. I have here the High Court judgment in the case of David Davis MP, Tom Watson MP and others v. the Secretary of State for the Home Department. This was in 2015, when the present Prime Minister was Home Secretary. David Davis the Back Bencher was bringing to court the now Prime Minister. He will recall that he was challenging the provisions of the Data Retention and Investigatory Powers Act 2014. He was concerned that they would impinge on the ability of MPs to have confidential communications from their constituents. He continued to make that point in debates that we were having a year or two ago. In his argument, he cited the charter. His lawyers made the argument that the charter was important because it went further than the European convention on human rights and therefore provided added protection.

I will not read out paragraph 80 of the judgment, although I am sure that the Secretary of State is familiar with it. As he knows, the Court found in his favour—he was right: the charter did enhance his rights—and rejected the arguments of Mr Eadie, the distinguished QC representing the then Home Secretary, now the Prime Minister. So when the Secretary of State asks whether this move will make any difference, the answer is yes. We can see that from his case. I suspect that if he were still on the Back Benches, he would now be talking to me and others over a cup of coffee about how we should fiercely oppose clause 5(4) and ensure that it came out of the Bill.

[Mr Grieve]

The right hon. and learned Gentleman makes an important point. Reading the mind of my right hon. Friend the Secretary of State, I think he asked why this mattered because he would insist that the general principles of EU law being preserved would replace the charter. However, if they are not justiciable because we do not found a cause of action in our courts, the ability to assert those rights would evaporate.

Parliamentary Scrutiny of Leaving the EU

Debate between Dominic Grieve and Keir Starmer

Wednesday 12th October 2016 Commons Chamber

[Keir Starmer]

Absolutely, but I take this in two stages because both are important. Scrutiny—putting the plans before the House—really matters. There is a separate argument about a vote, and I say that there should be a vote, but we must not get to a situation where, to resist the vote, the Secretary of State will not even put the plans before the House.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Is not the convention very clearly established that a major treaty change has to be triggered by an affirmative resolution of the House? The fact that that may only be a convention is still something that must be respected. After all, there are lots of conventions, such as the convention that a Government resign if they lose a vote of no confidence. That is no more than a convention, but Members might be a bit surprised if a Government were not to go in those circumstances.

[Keir Starmer]

The prerogative has come up so often that I will deal with it now in substance. Prerogative powers, of course, developed at a time when the monarch was both a feudal lord and Head of State. That is the origin of prerogative powers, but they have changed over time, yielding where necessary to the demands of democratic accountability. There are plenty of examples, as the Secretary of State will know, in the courts of that change in accountability, but there is also the example of the prerogative power to commit troops in armed conflict. In theory, the Prime Minister and the Cabinet retain the constitutional right to decide when and where to authorise action, but in practice Governments in recent times have ensured parliamentary debate and a vote.

Responding to the Chilcot report earlier this year, the then Prime Minister made the point during Prime Minister’s questions when he said:

“I think we have now got a set of arrangements and conventions that put the country in a stronger position. I think it is now a clear convention that we have a vote in this House, which of course we did on Iraq, before premeditated military action”.—[Official Report, 6 July 2016; Vol. 612, c. 881.]

A strong political convention modifying the prerogative has thus been set.

Investigatory Powers Bill

Debate between Dominic Grieve and Keir Starmer

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Mr Grieve]

Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.

However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.

Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.

Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.

I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.

[Keir Starmer (Holborn and St Pancras) (Lab)]

We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.

One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.

Investigatory Powers Bill

Debate between Dominic Grieve and Keir Starmer

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

[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.

[Mr Grieve]

The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:

“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”

We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.

[Keir Starmer]

I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.

The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.

Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and

“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”

Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of

“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”

and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.

The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.

That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.

--- Later in debate ---

[Keir Starmer]

I am grateful for that indication.

I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.

[Mr Grieve]

It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.

I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.

[Keir Starmer]

indicated assent.

[Mr Grieve]

That said, words sometimes matter, and the clearer the statement, the better. I hope that my right hon. Friends on the Treasury Bench will take that into account.