G20

Lord Clarke of Nottingham Excerpts

Monday 17th November 2014 Commons Chamber

[The Prime Minister]

I do not even know where to start with the hon. Gentleman. When he started his question I thought perhaps he had forgotten that the communists were not running Russia any more. I know he used to back them in those days, but I thought he would have moved on a bit since then.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does my right hon. Friend agree that, when one looks for concrete practical steps that might be taken to achieve the wholly desirable goal of increased growth in the global economy, a very great deal depends on the successful achievement of a comprehensive trade deal between the European Union and the United States? As this is one of the few areas on which the Republicans in the United States agree with the Obama Administration, did he press other European leaders to go for rapid progress on agreement at this stage in the short window of opportunity between the mid-term elections being over and the next presidential campaign beginning?

European Council

Lord Clarke of Nottingham Excerpts

Monday 27th October 2014 Commons Chamber

[The Prime Minister]

I would say to the right hon. Gentleman, for whom I have a huge amount of respect, that, to be fair to the Secretary of State for Defence, he corrected himself this morning, and I think he was absolutely right. It is right for politicians to raise concerns about immigration, but we should always choose our language carefully. He said this morning that he wished he had chosen his language in a different way, and I agree with that.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

May I sympathise with the Prime Minister on being taken by surprise on a subject that everybody in the Foreign Office and the Treasury must have known was coming along for the past five months, because British officials carried out the huge revision of the British GNP? I congratulate him on now choosing the sensible points, which are how to challenge the methodology and get the size of this reviewed, and how to get rid of the nonsense that it is all to be paid in a lump sum in a fortnight. Many other countries will join him in trying to sort that out.

Did the Prime Minister raise the European arrest warrant and the 34 other desirable directives which, I trust, we are going to opt into? Does he agree with my right hon. Friend the Home Secretary that these opt-ins are absolutely essential for the sake of our policing and criminal justice system if we are to make sure that it is up to dealing with international crime?

[The Prime Minister]

Let me say to my right hon. and learned Friend that of course these changes happen every year—they are expected every year and discussed every year—but what has never happened before is a change on this scale, and no one was expecting that. As for the opt-out or opt-in on justice and human rights, it is very important to recognise that we have already achieved the biggest transfer of power from Brussels back to Britain by opting out of 100 different pieces of legislation. We now need to make sure that we keep our country safe.

Iraq: Coalition Against ISIL

Lord Clarke of Nottingham Excerpts

Friday 26th September 2014 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I do not think there is any significant controversy about the moral and legal case for what is proposed, and in five minutes I will not set it out. The world would be a better place if ISIS was destroyed, and Britain would be a safer country without doubt. The legal case for intervention in Iraq is clear with its Government’s inviting us, and I think it is pretty clear in Syria because of the genocide and the humanitarian disasters being inflicted on that country. I do agree that it is artificial to divide the two problems: the Sykes-Picot line is a theoretical line on the map now, and there is absolutely no doubt that ISIS has to be defeated in both countries.

[Mr Bernard Jenkin (Harwich and North Essex) (Con)]

Given that one of the principles of counter-insurgency is to deny the enemy a home base, is it not absolutely essential that we back the American efforts in Syria? Otherwise, we will never defeat ISIS in Iraq. For people to suggest that we cannot go to Syria is actually tying our hands behind our backs.

[Mr Clarke]

I agree with my hon. Friend. President Obama has been quite open that the alliance we are joining is going to launch attacks on ISIS in both Syria and Iraq, and it is unrealistic to proceed on any other basis.

The real debate, to which I would like to contribute briefly, and which is the only issue for the vast majority of people in this House and for the vast majority of our constituents, is: where are we going; what is the long-term purpose; what is the strategy; and how are our foreign policy, our politics and our diplomacy going to be better on this occasion than they have been for the last 15 years?

The disaster of past occasions is not that we attacked pleasant regimes; we attacked evil men when we attacked Hussein, when we got rid of Gaddafi, when we attacked al-Qaeda in Afghanistan, and we would have been doing so if we had attacked Assad’s chemical installations last year. It is no good going back. I supported two of those: Libya and Syria last year. I was dubious about one of the others; and I opposed Iraq. That is not the point. What happened in all those cases was that the military deployment produced a situation at least as bad as it had been before and actually largely worse.

[Mrs Madeleine Moon (Bridgend) (Lab)]

rose—

[Andrew Bridgen]

Will my right hon. and learned Friend give way?

[Mr Clarke]

No. I have no time; I am sorry.

We did not create extremist jihadism; we did not create these fanatical, fundamentalist pressures, but we made things worse and made it easier for them to spread by some of our interventions. So we all agree that we must not repeat that. We need to be reassured, and I congratulate my right hon. Friend the Prime Minister on his speech, where he spent a very great deal of his time trying to reassure. I am left with the feeling that certainly I shall support the motion, because some of our best allies are taking part in this intervention, but I still think that we are at the early stages of working out exactly where we are going.

Our participation in these military attacks is almost symbolic. Six aircraft and our intelligence are no doubt valuable to our allies, but we are symbolically joining them. My main hope is that it gives us a positive influence on the diplomacy and the unfolding politics that have to take place to try to get together—again, all sides seem to agree that this is necessary—the widest possible participation and settlement between the great powers of the region, to get what we all want: lasting stability and security in what at the moment is a very dangerous region of the world.

I congratulate those who are responsible—Americans, no doubt—for getting the Sunni allies and the Arab states into what is taking place. That makes a big difference from previous occasions, but all these things have problems. Saudi Arabia, Qatar and other Arab states actually support other extremist Islamist, Sunni organisations, and they have to be persuaded not to. ISIS is the worst of the Sunni threats to the region, but it is not the only one, and its enemies include al-Qaeda and other groups as well.

The participation of the Shi’a is even more problematical, because there is no real Shi’a engagement, and that takes us on to the crucial matter of Iran. A lot of what is taking place in the region is a proxy struggle for power between Iran and the Shi’ites and the Saudis and the Sunni, and we revived ancient sectarian warfare that most sensible Muslims—the vast majority—hoped was long since dead.

Iran is a key influence because it is a close patron of Assad in Syria, of Hezbollah and of the Shi’ites in Iraq, including the Shi’ite militia, which is the only effective armed force at the moment for the so-called Iraqi Government. Somebody has got to get the Iranians and the Saudis closer together to support moderation and to decide what stability replaces things.

I am delighted that we have aligned ourselves with the Kurds, but their aim of Kurdistan makes problems for Turkey, and Turkey is a key ally as well if we are to make any progress.

I congratulate the Prime Minister on addressing all these things and on meeting Rouhani for the first time, and I wish him well over the coming several years, because no genius will solve this problem in a very short time.

Ukraine (Flight MH17) and Gaza

Lord Clarke of Nottingham Excerpts

Monday 21st July 2014 Commons Chamber

[The Prime Minister]

As a friend of Israel—the right hon. Gentleman said that he is one too—I think we should always speak the truth, and I always have done with Israel, for instance in the case of illegal settlements. But I think another element of the truth is that if Hamas stopped the rocket attacks on Israel, the Israeli operation in Gaza would end and there would be a ceasefire. The point that the Israeli Prime Minister makes, which I think is a legitimate one, is that there have been a number of occasions when he has unilaterally declared or agreed to a ceasefire, but Hamas will not follow suit. I absolutely agree that we need to speak the truth, but the truth must start with an end to these attacks.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

Does the Prime Minister agree that within the next few days negotiations should be concluded between the member states of the European Union on a proper sharing of the economic burden that will fall on our own economies from economic sanctions? Does he also agree that if this outrageous behaviour is not met with truly effective sanctions, the west faces very grave problems in the next few years from Russian behaviour across the rest of central and eastern Europe, including the Balkan states and the Baltic states inside the Union itself?

[The Prime Minister]

My right hon. and learned Friend makes two extremely good points. First, we have to make sure that when tier 3 sanctions come—and they should come—they cover areas such as financial services, defence and energy. That will affect different countries in different ways, but we need to ensure that we are all effectively sharing in the burden. Britain has been clear that we are willing to do that. The second point he makes is that those who argue that the effect of sanctions will be to damage our own economies are missing the bigger point, which is that our economic future is bound up with our economic security. We will lose that diplomatic and economic security if we do not confront the fact that one country in Europe is now being destabilised by Russia, and if we let this happen, others will follow.

Transatlantic Trade and Investment Partnership

Lord Clarke of Nottingham Excerpts

Tuesday 25th February 2014 Commons Chamber

[The Minister without Portfolio (Mr Kenneth Clarke)]

I too congratulate the right hon. Member for Wentworth and Dearne (John Healey) and his colleagues in the all-party group on securing the debate on this important subject. I welcome the fact that the vast majority of Members have spoken out in favour of the prospects of a trade agreement between the EU and the US, which we believe will be of great benefit to this country. I hope that the debate might serve the purpose of publicising the virtues of trade agreements between the EU and the US, as several hon. Members have said. I can assure Members that it is not for want of trying. I am afraid that the media in this country probably find the virtual consensus that exists between the main spokesmen in this debate one of the things that makes it less newsworthy. However, an agreement could be of enormous importance to the future of our economy.

The economies of most of the western democracies need a considerable boost at the moment and few things could give a greater boost on both sides of the Atlantic than a comprehensive deal that leads to a stimulus of trade in both directions. The values have been underlined. The case has been made. The figures on the potential value are speculative but there is no doubt there will be a stimulus to growth on both sides of the Atlantic, as the history of trading relationships shows. We should not forget that.

People keep going on about the fact that the agreement should be for ordinary people and not just giant corporations. What we are expecting to flow from that will be good for employment, particularly in modern, competitive sectors of our economy. It will also be good for consumers in increasing choice and keeping down prices and costs. As my hon. Friend the Member for Cities of London and Westminster (Mark Field) said, the last several decades show that the benefits of open trade are of great advantage.

[Several hon. Members]

rose—

[Mr Clarke]

I will give way shortly. I will merely say that the fact that we have this near consensus in British politics helps to give the UK a leading role in the negotiations. It is one of those areas where, despite our, at times, slightly tricky relationships with the EU, the UK is acknowledged to be the member state most in favour of open trading relationships. It is known that the UK’s position is not dependent on the position of one political party but extends way across the political threshold. My role, at the request of my right hon. Friend the Prime Minister, is to ensure that British interests and influence are brought to bear both in Washington and Brussels as the agreement goes ahead. It will be of huge value to achieve this, but let no one be too complacent about the prospects of getting a comprehensive agreement. It will not be easy, but I believe that the prospects are better at the moment than they have been at any time during my political career.

[Ian Paisley]

I fully agree with the way in which the Minister has approached this debate and the TTIP, but will he give us an assurance that he will ensure that the rights and interests of farmers and consumers are the top priority for the Government?

--- Later in debate ---

[Mr Clarke]

I will certainly try to address all those concerns. That is the key reservation that is being expressed. A lot of Members say that they are in favour of a TTIP but are extremely worried that it will affect our ability to set standards, and it is important that we address those fears. I genuinely believe that they are unfounded, but it is feared that people are getting conspiratorial and somehow plotting to reduce farming, food safety, health and environmental standards on both sides of the Atlantic. The fact is that the British Government are convinced that a trade deal is not the place to raise or lower standards for the consumer, for the environment, for health and safety, for employment or for farming and food safety. Those are matters for the legislative authorities on both sides of the Atlantic to decide for themselves. On neither side of the Atlantic is anyone proposing to undermine those standards.

The hon. Member for Brighton, Pavilion (Caroline Lucas) drew our attention to the matter of financial services in the United States. When I go to the US, I find myself having to reassure people that we are not trying to reduce their standards in relation to Dodd-Frank. When I meet people in the Democrat party who are close to the labour unions, I have to reassure them that our labour market standards on this side of the Atlantic are as good as, if not dramatically better than, those in the United States, even if our pay rates are not so high. The issues are not the same between us as they are between, for example, the United States and some of the Pacific rim countries. On neither side of the Atlantic is there any weakness in the lobbying from NGOs and others on all these issues. The negotiators on both sides of the Atlantic and the Governments of the European Union—certainly the British Government—have no intention of allowing our own right to legislate in the appropriate spheres to be compromised. Nor are we choosing this particular instrument to enter into a conspiracy to get round or lower the standards that we in this House and the people of this country wish to see applied.

[Mr Brian H. Donohoe (Central Ayrshire) (Lab)]

Our delegation that was sent to the States saw at first hand the discussions on the time scale. As I see it, that is the main hurdle that we face in relation to any agreement. Has the Minister any up-to-date information on the likely time scale for the introduction of such a treaty?

[Mr Clarke]

The hon. Gentleman follows these matters closely, and he knows that, on both sides of the Atlantic, we broadly agree that we need to keep up the momentum and make progress. If we do not achieve this deal by the end of 2015 or early 2016, we will not get there at all because the politics will take over. That is the history of trade deals. We would all have preferred an arrangement like the Doha round, under the auspices of the World Trade Organisation, but since that has gone we have tried to move towards this kind of agreement. The pace will vary. We have made remarkable progress so far, and we are about to go into our fourth round. Some of the first offers have already been exchanged.

How quickly this goes will depend on events. The half-term elections in the United States might slow things down, for example. Also, the US is engaged in negotiations on the Pacific partnership, which is associated with our agreement and slightly ahead of it. In any event, we have to secure agreement within the present administrative term in the United States, and before the politics in any part of Europe start to go sour because a lobby group suddenly decides that vested interests can be protected by opposing the deal. We have every intention of pressing on and making progress as rapidly as possible.

[Mr Robert Buckland (South Swindon) (Con)]

In our negotiations with the US Government, is it not important that we should emphasise the distinction between the TTIP and deals such as the trans-Pacific partnership, on the basis that the risk of a sophisticated, regulated market such as the EU dumping inferior goods on the US is minimal, and that the fears that have accompanied other free trade deals need not exist in the TTIP?

[Mr Clarke]

I can assure my hon. Friend that I make that point, although we are not hostile to the Pacific partnership. It is perfectly reasonable for the American Administration to wish to conclude such an ambitious deal. However, people appreciate that the issues being discussed in Congress and among the American public are quite different from ours, and I think that that makes it easier for us to make progress. On the question of fast-track authority, which would determine when we eventually conclude, my hon. Friend has mentioned worries about the trans-Pacific partnership that are causing doubts in the United States. I think that we are waiting in the queue behind that agreement in that regard.

[Mr Buckland]

Is there not a danger that members of Congress who are hostile to the fast-track authority proposals could somehow bring the TTIP into the mix and withhold FTA for our deal, as opposed to the trans-Pacific partnership?

[Mr Clarke]

The answer to that is yes, there is a danger. I can assure my hon. Friend that we will do our best to minimise it, as will the commission in Washington. It would be most unfortunate if that were to happen.

That brings me to the question of transparency. No one is hostile to the idea of being transparent. The EU is a union of 28 nation states and Governments, all of whom have their own Parliament, and the desire to share information among Parliaments and the public is considerable. There is a dilemma, however, in that there is a conflict between that arrangement and the negotiating positions. There is no doubt that our American friends negotiate very hard indeed. They are pretty hard-nosed people when it comes to negotiating the detail, and we cannot send our negotiators into the chamber with all their bottom lines, their ambitions and the mandates they have received from their member states revealed. We need to get that balance right, but the instinct of Commissioner de Gucht and Commissioner Barnier—and certainly of the British Government—is to be as forthcoming as possible, so long as we are not simply feeding information to lobbies that want to try to put a spoke in the wheels. I entirely understand that getting public support—and, eventually, the smooth ratification of this deal—will depend on whether we have been sufficiently transparent with all the lobbies.

[Katy Clark (North Ayrshire and Arran) (Lab)]

Will the Minister give way?

[Mr Clarke]

Let me make some progress; otherwise, I will not be able to complete my speech in the appropriate time.

The question of investor-state dispute settlements—ISDS is the acronym—has given rise to fears that the proposed deal is a plot between multinational companies that are seeking to destroy our long-established standards in labour laws, environmental laws and so on. I really do not believe that that is the case. On the other hand, the concerns are being taken seriously. I realise that we have to have substance to my assertion that we are not raising or lowering standards on either side of the Atlantic and we are not usurping the role of legislatures, which is why the Commission has said that it is going to consult. I understand some of the fears that have been expressed, but I do think that people have got the wrong end of the stick and the fears are wholly exaggerated.

[Katy Clark]

rose—

[Mr Clarke]

Let me make my point and go through the argument, and then I will give way. First, let us remember that trade deals do benefit consumers, which is why consumer groups such as Which? are in favour of this trade deal. It is protectionist providers that resist such deals. Quality, choice and the price for consumers are improved where there is a good trade deal, and those with the best products and services tend to win out in trade deals. The ISDS clause is not a novelty; it is not some new threat that has emerged. Such clauses have been put into most trade deals for years and years. I have heard the familiar examples of odd claims that have been made in actions around the world, but these clauses have not had the effect that has been described.

Apparently, there are 3,400 of these clauses inserted in trade deals globally. The EU and its members have 1,400 ISDS clauses in various trade deals, and the UK has 94 ISDS clauses in our existing bilateral treaties. We have twice been challenged under ISDS for standards alleged to break our treaty obligations, but so far no British Government have ever lost a case under ISDS. What we have done is successfully brought claims against other countries; we have had slightly more success there, because the point of an ISDS is to underline the value of the total agreement by making sure that no individual investor or business can be disadvantaged by a Government or union of Governments breaking the obligations they have entered into.

The case was cited of Slovenia—somebody, perhaps the hon. Member for Carmarthen East and Dinefwr (Jonathan Edwards), said Slovakia—and my understanding is that it was lost when, as a result of local lobbying, that country went back on the deal it had just done to open up its health insurance market. That cannot be done, but no ISDS takes away the right to legislate from a Parliament; an ISDS gives rise only to a quicker and cheaper means of resolving disputes if there is some suggestion that a Government are breaking the agreement. Some say, “No European Union Government or the USA would ever do that”, but one of the big ambitions of those on this side of the Atlantic is to open up the public procurement market in the US. In some states of the US it is open, but in others it is not; some states do not measure up to WTO standards at all. Far be it from me to express the faintest doubts about the approach of politicians in some smaller US states or some EU states, but public procurement sometimes takes on a pork barrel element when the contracts are being placed, as opposed to when the tenders are being issued.

I think there could be some advantage, some reassurance and some pressure against people cheating in public procurement contracts if it is known that there is an ISDS clause. Of course it is quicker and cheaper, and it is arbitration and not litigation, but again the argument of those against ISDS is, “Why don’t you just go to law? There is a perfectly good legal system in the European countries and in the US.” I can say only that the US does have a perfectly good legal system, but it is expensive and it can be extremely long, as one sails through either the state courts or the federal courts trying to resolve a dispute. People have said that the advantages in all this agreement are as much in the area of regulatory coherence —with far more regulatory coherence stopping unnecessary convergence in our recognition of regulatory standards—than they are in tariffs, but small and medium-sized countries are not going to go into these markets if they are taking on the risk of having to go in for expensive litigation against American authorities that are plainly not complying with their terms of the treaty. Similarly, there are states in the EU where American investors would be most reluctant to sail in if they were relying entirely on the fact that they can take to the legal process in some southern European countries to challenge the bona fides of local officials over whether they were complying with the agreement. I will go no further, but the British have always put these clauses in our trade deals and the US normally puts them in its trade deals; 3,400 of them are in place and they have made a reality of free trade where it would otherwise not have happened.

[Julian Smith]

I welcome the fact that my right hon. and learned Friend is standing up for small and micro-businesses, which will really benefit from this ISDS vehicle. Is he, like me, surprised that the Labour party, while claiming to be pro-enterprise, is so against this measure?

[Mr Clarke]

Obviously, I understand the doubts being expressed, because some extremely respectable lobbies and non-governmental organisations—some consumer groups, some aid lobbies and some sections of the trade union movement—are raising all these fears. I genuinely think that they are mistaken and that their arguments, if they are too successful, will not benefit employees, consumers or anybody else, which is why I am trying to rebut them. Those who have spoken—I do not think anyone would be offended if I described them as somewhat of the left of the broad political spectrum, which does not mean that they are unacceptably or extremely left—are getting the wrong end of the stick. The ordinary man and woman have a great deal to benefit from this TTIP. To make it less effective by excluding an ISDS would not help.

[Katy Clark]

Will the right hon. and learned Gentleman therefore give us an assurance that nothing in this trade agreement would undermine the democratic ability of this House and other parts of Government in these islands to take decisions on the commissioning and organisation of public services—whether those services are in the private or the public sector?

--- Later in debate ---

[Mr Clarke]

I realise that a broader issue underpins those fears, which is the extent to which there is scope for private sector involvement in our national health service, and that is part of a much bigger argument that I have taken part in for 30 years. I was not aware that a distinction was drawn between British, French and German private sector participation and American participation in our national health service. I can assure the hon. Lady that nothing in the agreement would open up access to the national health service beyond what is already permitted, and what was permitted under the previous Government. Overseas suppliers are already able to offer hospital services and health-related professional services through a commercial presence here. The important thing for anyone who engages in the provision of professional health services and health care companies in this country is that they have to comply with UK standards and regulations in just the same way as British health care providers, and, as I say, those standards will remain under the sovereignty of this country.

[Mr John Spellar (Warley) (Lab)]

The right hon. and learned Gentleman was asked a question regarding the involvement of micro-businesses, but the note from the Library states that the average cost of an arbitration case is $4 million per party, about 82% of which is legal fees. The panel members can claim a daily fee of $3,000 a day plus expenses, and billing rates for arbitration lawyers run up to $1,000 an hour. Only major corporations will therefore be able to participate in this. I am not detracting from the main thrust of his argument, but this really is for major companies, is it not?

[Mr Clarke]

I am not encouraging small companies to start engaging in arbitration in major commercial disputes. That is an average. It depends on the complexity of the issues. I think the right hon. Gentleman would agree that full-scale commercial litigation—probably on either side of the Atlantic—is more expensive. This is a quicker arbitration process to substitute for the enormous costs that would be involved in challenging a public body, on either side of the Atlantic, on a commercial dispute about a breach of treaty obligation.

[Mr Cash]

Before my right hon. and learned Friend concludes, will he elucidate on the point he made earlier?

[Mr Clarke]

Which point I made earlier?

[Madam Deputy Speaker (Mrs Eleanor Laing)]

Order. Is the Minister giving way?

[Mr Clarke]

indicated assent.

[Mr Cash]

It was with respect to the question of transparency and the fast-track arrangements. As my right hon. and learned Friend knows, President Obama, in his State of the Union address, called for fast-track arrangements. The next day, the Democratic leader in the Senate turned down the idea. Indeed, Nancy Pelosi, the minority Democratic Leader in the House of Representatives, turned it down only last week. Was my right hon. and learned Friend being a little sanguine in his assessment of the position, and does he have any up-to-date information to give us today?

--- Later in debate ---

[Mr Clarke]

I said only that the timing of fast track authority would have an effect on the timing of any agreement. I follow these matters closely. Obviously, they are utterly beyond our control. This is a political issue in Congress. There is more support in both Houses of Congress for a trade agreement with the EU than I can remember in my political career, but people have reservations and of course many people in Congress would rather see all the details before they approve it than give too early authority. The problem is that no one will ever settle a negotiation with a US Administration on the basis that Congress might be able to suggest detailed amendments to it afterwards as a condition of approval. It would be improper for me to start offering opinions about how it is going to go with the United States, but the timing of fast-track authority is a little uncertain. The doubts are more provoked by the Pacific partnership agreement than the TTIP. As my hon. Friend the Member for South Swindon (Mr Buckland) said a few moments ago, the two are slightly linked when it comes to American debate.

[Mr Donohoe]

Will the Minister give way?

[Mr Clarke]

This will definitely be the last intervention I will take.

[Mr Donohoe]

On the basis of discussions on this matter with Senators from the United States, it seems that they are concerned, as we should be, about the growth in the Chinese marketplace.

[Mr Clarke]

Well, they are, but that is, as several people have said, part of the significance of this potential EU-US deal. It covers 47% of the world’s GDP and about 30% of world trade. If we can get a proper comprehensive agreement, we will set standards that will guide future trade agreements that will inevitably involve China. The Prime Minister recently began to talk about the prospect of moving on to the big challenge of deciding how China should be accommodated in these arrangements, which are now, I am glad to say, spreading throughout the world. If we can tackle this one, we will be in a better position to contemplate how to deal with China.

The negotiations are making good progress. It gives some cause for optimism at a time when it is foolish to be naively optimistic about how rapidly we are going to recover from the worst financial crisis in modern times and how rapidly the western European countries, including the United Kingdom, will return confidently to secure normal growth in better balanced economies that are able to compete in the modern world. This agreement is going in the right direction. Needless to say, I agree with my hon. Friend the Member for North Dorset (Mr Walter) that it particularly underlines the value to this country of its being a full member of the EU. It is an illusion to believe that we would sit at these tables if we suddenly decided to leave the EU. It is a complete delusion for any Scotsman to believe that Scotland would continue to play any significant role in this kind of problem if it suddenly decided to revive the mediaeval kingdom and start leaving the United Kingdom. We live in a world where politics has never been more intimate and we live in a globalised economy where our aim must be to have a United Kingdom economy that is modern and competitive —as ever, opening possibilities for us. A confident United Kingdom will play a leading part in influencing the EU’s progress towards a comprehensive deal which there is a good chance—no more than that—will be achieved within the next year or two. The fact that it has been so widely welcomed in this House will help us give added impetus and improve British influence in the process on both sides of the Atlantic.

[Several hon. Members]

rose—

--- Later in debate ---

[Zac Goldsmith]

I thank the hon. Gentleman for that intervention.

There are so many differences between the US and the EU, and not only in the quality of standards, but in the approach to developing them. I cannot imagine a situation in which harmonising standards and regulations would work in the interests of the consumer. I have given the example of GM food labelling, but there are many others. A number of countries around the world, and indeed the EU as a whole, have chosen not to allow the import from the US of beef from cows fed a diet that includes the hormone ractopamine, because of the fairly grave health concerns. I suspect that most British consumers would support that position. Would that be challenged? Well, there is already plenty of talk among agribusiness in the United States that it should be.

Most worryingly, US agribusiness is strongly opposed to EU attempts to limit endocrine disruptors. The links between the use of such chemicals and the alarming increase in precocious puberty among young girls are not disputed. Will those standards that we have set across Europe be adhered to and maintained? That remains to be seen, but we know that plenty of lobby groups in the United States have their sights set on reducing those standards.

It is easy to imagine that regulatory convergence will mean chasing the lowest common denominator. It is worth noting that, according to a whole raft of freedom of information requests conducted by the Corporate Europe Observatory in the context of the TTIP, the Commission has met civil society groups just eight times over the course of those discussions, whereas it has met corporate lobby groups—I do not know how they are defined and am only repeating what has been reported—119 times.

I suspect that most Members across the House would agree that removing or simplifying unnecessary regulations, removing barriers to entry, particularly for small firms, and encouraging free trade are all laudable aims, but they need not happen at the expense of democracy. My concern is that the proposed ISDS mechanisms, which we have already heard a great deal about, will undermine democracy. Under those mechanisms, companies wishing to challenge a national regulation could effectively bypass the usual process and go straight to an investment tribunal. Often hugely important outcomes therefore rest on the shoulders of just three arbitrators—one is chosen by the company, another by the state and the third is a compromise of the two. It is hard to understand how this country would want or need such a system.

My right hon. and learned Friend the Minister was asked recently—

[Mr Kenneth Clarke]

rose—

[Zac Goldsmith]

He is about to intervene, but I am going to quote him anyway, because he might be about to repeat this. When asked why that would be useful for this country, and indeed for Europe, he stated:

“Investor protection is designed to support businesses investing in countries where the rule of law is unpredictable, to say the least.”

There have been so many requests to this Government and to the European Commission for examples of countries in the EU that are beyond the pale along the lines of the description he offered, but not one country has so far been listed, so why do we need this process? Why do we need these tribunals for countries where the rule of law is adhered to more or less across the board?

[Mr Clarke]

As I understand it, an investor who has access to this process would not be able to start arguing in favour of reducing standards in any regulation that has been passed by the legislature. Regulating will remain the responsibility of the authorities that already regulate. The only claim that can be made through the ISDS is that the state has gone back on its treaty obligation. Therefore, unless in the course of negotiations some agreement has been entered into to change regulatory standards on either side of the Atlantic, there is no way our existing rules on food standards or anything else could be challenged by some American company that suddenly decides that now that we have signed a TTIP it has the right to try to change the rules. What we are trying to get rid of is unnecessary regulation and the duplication by regulators on either side of the Atlantic of processes designed to reach the same public objective. That is the kind of thing that can be eliminated, to the huge advantage of companies on both sides of the Atlantic.

[Zac Goldsmith]

I very much appreciate my right hon. and learned Friend’s intervention. At this stage it is very hard to know how things will pan out. Much will depend on the terms of reference, but there are plenty of examples from around the world—as he pointed out, this is not a new concept—of companies using similar provisions in other trade agreements in order to undermine domestic legislation.

The North American Free Trade Agreement is a good example. According to a succession of polls in the past year, just 15% of US citizens want to remain in NAFTA. It has become one of the most unpopular free trade agreements of all; it makes the Euroscepticism that my right hon. and learned Friend talked about earlier look like a joke. A striking example in relation to NAFTA concerns Canada being sued via one of these dispute mechanisms by Ethyl Corporation—he is probably familiar with the case—for banning the chemical MMT, which Canada considers to be a highly dangerous toxin. Canada had to settle; it paid millions of dollars in compensation and eventually had to reverse its ban. Incidentally, the ban still stands in the United States, which makes the decision even more perverse. There are many more examples, and I was going to rattle off hundreds, but time is short and Members will be pleased to know that I will not.

As this treaty unfolds, it is essential that we remain mindful of who it is designed to serve. A guard needs to be erected against the voracious lobbying by big businesses that have a direct interest in undermining a number of the standards that I cited and have been cited by other Members. I personally do not trust the Commission to balance those competing interests, for all kinds of reasons, some of which I have hinted at in my short speech. I strongly believe that it falls to legislators like us to apply scrutiny throughout this process, and I very much hope that we do.

Deregulation Bill

Lord Clarke of Nottingham Excerpts

Monday 3rd February 2014 Commons Chamber

[Chi Onwurah]

I am going to make progress, as many Members wish to speak.

Regulation is a concern for some businesses, but business people understand that rules are needed to protect people’s safety and rights, promote competition and prevent employers from being undercut by those who do not play by the rules. As the Federation of Small Businesses has noted, the concerns of business are often about how regulations are developed and introduced, how they are enforced, and the duplication and overlapping rules that waste their time. The Government’s rather crude “one in, two out” approach fails to recognise that sensible and proportionate regulation introduced and implemented properly can promote healthy, competitive markets. The issue is more complex than the number of rules coming in and out.

We believe it is essential to take a fresh look at existing regulation, how it is implemented, and how—in response to the right hon. Member for Wokingham (Mr Redwood)—it is translated from European directives. Regulation protects consumers’ and employees’ rights, ensures that our industries play their part in moving to a green and sustainable future, and keeps citizens safe; it has saved many lives. It is important that it is effective and enforceable. Challenges arise when ill-thought-through regulation has unforeseen consequences or is interpreted bureaucratically and inflexibly. Some regulation can certainly represent an unnecessary burden on businesses, particularly small and medium-sized enterprises that may not have access to legal advice to interpret regulation accurately or the resources to implement it fully.

When in power, Labour sought to reduce regulation by introducing the Better Regulation Commission and the ongoing better regulation programme, and made a number of legislative changes to reduce the cost of regulation. Our programmes for simplifying regulation delivered—[Interruption.] Our programmes delivered— I would have thought this figure would be of some interest to Government Members—£3 billion of savings to business per year. In contrast, the impact statement for the draft Bill—Ministers have not dared to produce a comprehensive summary for the current Bill—estimated that it would save business and civil society £10 million over 10 years. So we have savings of £10 million or £3 billion; I think the Minister can do the maths. The figures underline that while we all agree unnecessary regulation can be a burden on business, a sensible approach to deregulation is about more than repealing statutes.

In government, we introduced legislative reform orders to help Ministers to get unnecessary burdens on business off the statute book. However, as the Regulatory Reform Committee has noted, instead of using those 11 procedures already available to Government for deregulating, Ministers chose to invent a new one. We also set up the primary authority scheme and the Regulatory Policy Committee, as well as a Cabinet Sub-Committee to focus minds at the very top of Government. That was our record in government.

Building on Labour’s progress in government, the Bill seeks to introduce a growth duty on regulators, as the Minister explained. This duty will compel them to have regard to the promotion of economic growth when carrying out their functions and to carry them out in a necessary and proportionate way. We support the aims behind the duty and, clearly, the principle that regulators should go about their business in a proportionate way, but we must ensure that the duty does not inhibit or contradict the primary function of any regulator.

The crude proposals in the Bill do not fit into an overall strategy or vision for this country. They show no recognition of why growth is important to deliver good, sustainable jobs, to help people’s incomes rise faster than costs, and to ensure that we become richer as a nation. They do not mention long-term or sustainable growth—they refer simply to growth—and they fail to recognise that good regulation is necessary to protect jobs and growth. Is it right that a housing bubble or a casino-capitalism-fuelled, short-term growth spurt should be a primary consideration for the Office for Nuclear Regulation? I hope we all recognise that markets need to be regulated in order to protect growth and jobs, or are the Government suggesting that the underlying cause of the global financial crisis was too much regulation?

[The Minister without Portfolio (Mr Kenneth Clarke)]

I am sorry to put the hon. Lady out of her stride, but I have slightly lost her point; I will be replying to this debate, so I just want to follow her argument. She has said that she is in favour of regulators paying regard to the aim of getting growth in the economy and of their regulations being proportionate to the risks they guard against, but now she appears to be speaking against that. I do not follow her argument: is she proposing to vote against the regulators being asked to have regard to the growth of the economy and against their regulations being proportionate? If so, I have not followed her logic. How on earth would our proposed measures produce a casino-like growth bubble? We are simply proposing a sensible constraint on regulators to make sure that they remain proportionate and do not do out-of-proportion economic damage.

--- Later in debate ---

[John Mann]

As the hon. Gentleman said, he has not had time to read the Bill, which is why I itemised, for the record, every clause and schedule that removes Tory legislation. In fact, around 80% of the legislation being removed is Tory legislation. Indeed, when the Minister without Portfolio, the right hon. and learned Member for Rushcliffe (Mr Clarke), responds, he will doubtless wish to outline which bits he introduced in his various ministerial guises. Given his ministerial longevity, there will undoubtedly be several regulations that he was personally responsible for but now wishes to remove, and we on the Opposition Benches might wish to back him on that.

However, the Minister for Government Policy, a highly educated and learned gentleman, did not, when receiving his challenge on self-employment and safety, know what he was talking about. I cited, in relation to clause 1, what would happen with a self-employed mountain guide. He immediately jumped in to assist his hon. Friend the Member for Macclesfield (David Rutley), who was struggling, because he knew that I was right and that the clause represents an undoing of the self-employed mountain guide’s employment position. There is a critical flaw in the logic of the Bill. Mountain guides require insurance, and to get it they need to demonstrate that there is a health and safety profile, and that is relevant for those who employ self-employed mountain guides who take people out on ropes. By the way, I personally managed to negotiate, on behalf of the all-party group on mountaineering, exemption from the working at heights directive anomalies that affected that profession, demonstrating that the way the industry works meant it was not safe to put that application into place. I am not, therefore, on the side of unnecessary regulation, but the protection of the employment position of those self-employed people is fundamental.

A better-known example, the single biggest civil litigation case brought by a group of workers against a Government, demonstrates the issue more brutally. That common-law action brought by workers in the mining industry, for chronic obstructive pulmonary disease and Vibration White Finger, cost the Government a huge amount of money, because the people involved were employed primarily by the Government, so it was a taxpayer liability, although there were some private companies. The civil action was successful because the litigators had demonstrated that appropriate practices and procedures were not in place. If there had been proper regulation of the mining industry at the time, the cost to the health of the men forced to bring the case would have been hugely reduced, as would the financial cost to the taxpayer and other employers, which went into many billions.

That is the point of good regulation. A good health and safety procedure—for example on use of breathing equipment in a colliery or the handling of vibrating tools—would have been a mitigating factor in those processes, and a huge mitigating factor in terms of compensation. That is precisely why self-employed mountain guides require a structure within which they can get insurance and quantify it, to take them out of the provisions of the Health and Safety at Work, etc. Act 1974. What we are doing is leading to a lawyers’ paradise in which the agency that might employ people, and the individual, will be able to battle between one another over who is liable, if it can be demonstrated in court that particular procedures were not followed. A requirement of responsibility under health and safety law gives protection to that self-employed person as well as to the agency employing them.

Let me tell the House why I know that. When I ran a small business—as I did for many years—we had to deal with working at heights and a range of legislation, and I shall illustrate my point with some examples. A case was brought against us by an employee who had broken his foot. However, because of manual handling at work legislation and the fact that we had applied it, the case got nowhere. That was precisely because the legislation had created a structure with a sensible and rational procedure, which we could demonstrate and insist that the employee followed. When he did not follow that procedure, we could demonstrate that as the employer—with liability—we were not in fact liable for the accident.

It is a myth that good regulation damages small business. I lived with regulation day in, day out, and if we ask small businesses, we find that they nearly always object to two things: paperwork—that is always a nightmare—and cost. When small businesses complain—and when I did—it is about cost. If regulation costs a lot and someone is trying to make ends meet, it is difficult. However, regulations on manual handling at work, and health and safety legislation, do not involve cost other than training the work force. It is a miniscule cost. It is an absurdity when someone is handling heavy goods, as we were, not to have such regulation. Let me give a second example.

[Mr Kenneth Clarke]

The hon. Gentleman is making a passionate defence of the regulations under which he successfully defended a claim many years ago, but the Bill does not affect health and safety legislation as far as small employers—such as those whom he is speaking so eloquently in favour of, and such as he was—are concerned. It is an interesting illustration of the value of health and safety regulation, which I do not dispute, but what on earth has it got to do with the Government’s proposals?

[John Mann]

When even the Minister who is responding to the debate has not read the Bill it is a bit of a problem. Read schedule 1. Most of the employees that I had were self-employed—[Laughter.]

[Mr Clarke]

I am sorry; that is what fooled me.

[John Mann]

I do not find it amusing that the Government introducing the Bill have no idea what goes on in workplaces and of the effect that this change will have, so let me illustrate my point. In the kind of work that we were doing, such as setting up major concerts in huge halls, a variety of different people come in and work together. Who is responsible for ensuring that the ladders going up—perhaps 50, 60, 70 feet—are secure? If it is a self-employed person, without that requirement in law because of this change, that buck—that burden—can be shifted. One critical thing in such a situation is having an overall duty because then everyone is liable. When working in complex spaces, with people going backwards and forwards carrying huge loads of equipment, lugging it and putting it up on high, all—whether a single person, a company or a company bringing in self-employed people, as we often did—ensure that the systems and the space is properly secured because they have a responsibility without exclusion.

--- Later in debate ---

[The Minister without Portfolio (Mr Kenneth Clarke)]

A small and select group of specialist people have taken part in this debate, but it has been a very worthwhile one and while it has got very heated and agitated at times, I keep being reminded of how closely we have all been forced together, and the hon. Member for Hartlepool (Mr Wright) therefore finished on a very welcome note. The fact is that, so far as I noticed in every contribution from the moment the debate started, we all rather accept the need for deregulation. Everybody agreed on the other hand that there is a case for sensible regulation in the modern world. Indeed, it is highly desirable, but it is essential from time to time for Governments and Parliament to ensure that what is being done is proportionate, sensible, justifiable and does not impose unnecessary burdens on individuals and branches of government, and on business and small business in particular. We have gone round and round in circles and some Members have got wildly excited about particular regulations, but the fact is we come back to agreement on that point, and I get the impression that no one is going to press any objection this evening to the vote.

[Caroline Lucas]

Will the right hon. and learned Gentleman give way?

[Mr Clarke]

The amendment is of course on the Order Paper, so I give way to the hon. Lady.

[Caroline Lucas]

I have been advised that it will be helpful to the House to let the right hon. and learned Gentleman know that I do not intend to press the amendment tonight.

[Mr Clarke]

I am very grateful to hear it because by its very nature a deregulatory Bill gives rise to many points that can be raised in Committee.

The hon. Member for Wansbeck (Ian Lavery) raised a lot of detailed points, and said that they should be considered in Committee. He has already served on the pre-legislative scrutiny Committee. It is inevitable, when the British cover such a wide variety of things in regulation, that we sometimes have to have an item-by-item vote.

I take it from the tone of the debate today that the general direction of policy set out by the Government has fairly widespread approval. I have endured the experience of opposition, albeit briefly, in my time, and I occasionally had the burden of being sent along to a debate of this kind and trying to find something to argue about. I think that that was the problem facing the two very able Front-Bench speakers representing the Opposition today.

A strange argument broke out at one point today about whether what we were doing was totally insubstantial, worthless and of no point to the outside world, or whether it was completely horrendous and, as the Green amendment, which is no longer being pressed, says,

“ripping up vital green legislation”.

It was suggested that our blood should run cold at the idea of what we were doing to everyone from those climbing mountains to those running small businesses.

The claim was also made that the last Government had somehow achieved £3 billion of savings through their strident deregulatory measures. I am not here to debate the record of the last Government, but that is quite the most startling exposition of what they achieved that I have ever heard. I do not recommend that any Labour spokesman should try to persuade an audience of any of the small businessmen I have ever met that that was what they were doing.

The Bill represents the most determined effort of any Government I have known to pursue the deregulatory aims to which most Governments have paid lip service for the past 20 years. We were all into deregulation in the early 1990s; then the Labour Government talked about “better regulation”. I believe that this Government can claim that the substance of what we are producing greatly exceeds anything that has been done before.

Some of the figures that have been quoted about the impact of the Bill disguise the fact that it is only one part of the red tape challenge that is being led by my right hon. Friend the Minister for Government Policy. The Bill runs alongside and is part of that challenge, and it contains the elements that require primary legislation. My right hon. Friend has mentioned the 3,000 regulations that need to be repealed or improved.

The Bill has to be big enough and long enough to deal with so many detailed areas, and it will supplement and add to that to produce a deregulatory effect for businesses—particularly small businesses—as well as individual citizens, local authorities and branches of government, all of which have better things to do than to waste money on statutory duties the reason for which no one knows, or to produce reports that nobody reads or to have obligations for things that nobody is asking them to give advice on. For example, school governors have to publish advice on discipline. Our reforms will not undermine school discipline; my right hon. Friend the Secretary of State for Education has talked about the need for school discipline. Most governors do not even know they are under such an obligation, but unfortunately some do produce a statement of policy, which is not required. That regulation will now be repealed.

The key part of the Bill is the one that relates to business. I agree with my hon. Friend the Member for Stroud (Neil Carmichael) on this. I think we will need a Bill of this kind every 10 years or so. In modern times, as a result of single-issue lobby groups and newspaper campaigns, Government Departments engage in ever-more legislative and regulatory activity, sometimes for the sake of being seen to be doing something or, in the case of the lobby groups, being seen to be demanding something new. That has an adverse effect not only on the statute book and the regulatory publications but on the administration of good government and the running of any successful business. The Bill is therefore a welcome, and drastic, attempt to change the culture and go back in the direction of common sense and proper regulation that involves a true public interest and to ensure that environmental standards and the safety of workers are maintained.

The hon. Member for Newcastle upon Tyne Central (Chi Onwurah), echoed by the hon. Member for Hartlepool, got on to matters that were of concern to her. Although such things can be discussed in Committee, I have to say that an attempt was being made to make a difference of principle that was not there. For example, we had the issue of employment rights and of the tribunals dealing with claims by employees against their employer. Let me make it absolutely clear that the Bill is not remotely trying to roll back the law on unfair dismissal or to reduce the protections against discrimination in the work place.

The hon. Member for Bassetlaw (John Mann) tried to identify the party political origin of every measure in the Bill. As it happens, it was a Conservative Government who set up employment tribunals, introduced employment rights and started the whole process that we now have. The intention was to provide a sensible, accessible and low cost way of resolving disputes and awarding compensation where some breach of employment rights had taken place. Over the years, the system has become legalistic. It has become almost habitual for anybody who loses their job to bring a claim, because there is very little risk to them and a great deal of encouragement to have a go. None of that is being tackled too directly by the Bill.

Addressing the power and cost of tribunals is much overdue. The principal fundamentals of employment rights are utterly beyond dispute nowadays. For the hon. Member for Newcastle upon Tyne Central to claim that this Bill is a serious threat to the real principles underlying employment rights and achieves no important benefits shows that she has not met enough employers. When we talk to small employers about the problems of running a competitive business, most will rapidly start raising the problem and cost of claims before employment tribunals. The changes we propose could be criticised for being too modest, but they are certainly heading in the right direction. They should not invite a knee-jerk reaction from the Labour party, or anybody else, that nothing should be done to deregulate in that area and to remove unnecessary cost.

Similarly, on health and safety, absolutely nobody is suggesting, in this Bill or anywhere else, that we lower standards in this country when it comes to protecting the health and safety of the work force, or anybody else. We are not short of regulation in that area. Most of it will remain intact, but what is proposed here seems to be perfectly sensible. The biggest single change is to take away the burdens of health and safety legislation from self-employed people who are not in an occupation that can pose a threat to other people, as will be specified. It is absurd. Let us take a self-employed person, not one of those self-employed contractors in the business of the hon. Member for Bassetlaw, but someone writing a novel in his cottage in the countryside in Dorset. He is a self-employed person. Is Labour going to argue passionately in Committee that he should be subject to health and safety at work legislation, which he is at the moment? Of course he is not likely to be sued unless he throws a book at somebody in a moment of bad temper, but even that is probably not a breach of the health and safety at work legislation. He is subject to inspection. He may have to pay regard to the guidance. I have taken an extreme example of what should be a harmless occupation—if he is a reasonable novelist.

There is a range of other self-employed people who may have to take professional advice on what impact the Health and Safety at Work etc. Act 1974 has on their particular activities. We are proposing to clarify that health and safety legislation applies to those people who are engaged in activities that could pose a risk to people other than themselves. Clarity will come when we produce information—as soon as we can in the course of the Committee, as my right hon. Friend the Minister for Government Policy has said—on the specified sectors of the economy and specified occupations. A statutory burden will be lifted from a wide range of self-employed people who have been covered by it by accident.

[John Mann]

No self-employed novelists have had health and safety inspections or a burden that they have had to consider. Is not the problem that once we say a line will be drawn and some will be covered and some will not, that creates a grey area? The grey area creates danger and damage and risk, including for the person themselves.

[Mr Clarke]

I deliberately chose, as the hon. Gentleman did at the other extreme, the rather way-out example with my self-employed novelist. I have not done the research on which self-employed people have found themselves subject to inspection, the recipients of guidance they do not want or feeling obliged to take inspections. I do not know whether self-employed beekeepers or all sorts of other people fall into this area, but there is no doubt that the legislative change and the clarity proposed will put the duty and burden on those who might pose a risk to others and move it from vast numbers of other people. Our independent regulatory committee has estimated the saving for the businesses of many self-employed people.

[John Mann]

The right hon. and learned Gentleman gives the example of a self-employed beekeeper. A beekeeper friend of mine was nearly killed when moving a hive during rain because he was not aware of the dangers during rain. If the person moving it with him had nearly been killed, there might have been a claim against him. Does that not illustrate precisely why an overarching approach is far better than additional regulation and somebody deciding who is in and who is out?

[Mr Clarke]

I admire the eclecticism of the hon. Gentleman. I knew that I could not engage with him on mountain climbing but I underestimated his knowledge of bees and beekeepers. I shall take considered advice on the application to beekeeping and I have no doubt that the matter will be raised in Committee if the position of beekeepers becomes a point of real contention when the list is published. The point that I am trying to make is that I think that the vast majority of self-employed people—I shall not name another esoteric profession—need not be covered by legislation, subject to the Health and Safety Executive, inspection and so on, or to take professional advice. We are rationalising and making sense of one area whereas otherwise our commitment to the health and safety at work of employees and the health and safety of the public remains undiminished.

Another measure that all Opposition Members tried to make a mainstream political point about is the growth duty we are putting on non-economic regulators. I am not a climate change denier; the Government are in favour of environmental protection, and the conservation of our habitat and essential national heritage is a perfectly important objective of the Government. It is completely over the top to describe the changes in the Bill as sometimes threatening all that. We are saying that the various non-economic regulators should have regard to the desirability of the growth of the economy while carrying out their other duties. That was described as a mad dash for casino growth and likened to our casting away of regulation on bankers, which we did not do—it was the previous Government who did that. I would have agreed with the hon. Member for Bassetlaw had he cited that example, as it was a good example of the importance of regulation and the pathetic inadequacy of the Financial Services Authority when the then Chancellor gave it that responsibility. In this case, all that we are doing is saying that while it remains liable to follow its existing guidance—it has been pointed out that it is supposed to regulate only where necessary and proportionate—it is supposed to have regard to the impact on individual businesses, and it should have regard to the growth of the nation. Serious conservation in a highly developed, advanced economy like ours and the protection of our natural environment have to take account of the fact that at the same time, we hope to be a growing economy and a powerful, modern, industrial nation. It is a question of balance, judgment and common sense between the Government’s economic interests and our desire to conserve what is best in our heritage. Describing the Bill as an attack on that is absurd.

That shows why the previous Government’s record was pathetic on deregulation and reducing the burdens on business. They constantly gave in to pressures that drove them in the other direction, and it requires a Government with clarity of purpose to get hold of the subject and make a detailed attempt to reduce unnecessary burdens, bureaucracy and paperwork. The printing of useless documents and general obstructions to growth and efficiency need to be removed if that is to be a success.

I welcome the fact that some things received universal approval. My hon. Friend the Member for Stroud (Neil Carmichael) discussed what we are doing on apprenticeships, and no one gainsaid him on that. Those are important measures that will strengthen skills training in industry and help to improve young people’s prospects of employment. The measures on yarn received widespread support from those in the House who do knitwork. The measures on rights of way achieved remarkably unanimous acceptance—this is an impossibly controversial area, but the stakeholders’ group has reached agreement. The Government’s proposals have been advanced, and I am glad that they have been accepted.

There was talk of the European Union. We are going to try to secure the application of the same principles there, and Barroso has begun a deregulatory drive, which faces the same difficulty in Europe that it has always faced in Britain, because most of the regulations are supported by some lobby or other. The European regulations are the result of the single market. To stay in the single market required a mass of regulations. When the then Government pressed for the single market to be created, the British Commissioner whom we appointed—Arthur Cockfield, I think—came up with thousands of amendments, which were required in a single market if it was to have common regulation, as we heard, of consumer rights, safety standards, consumer protection, environmental protection and so on.

Our example should be followed in the rest of Europe, and it will help us to guide other member states to adopt the same approach. I believe that for all European countries, but it is Britain that particularly concerns me. If we are to regain our competitive position in the wider market and return to normality as one of the stronger economies in the modern world, deregulation and reducing burdens on business is part of that.

As my hon. Friends the Members for Macclesfield (David Rutley) and for Witham (Priti Patel) said, we are not saying that this is the sole answer for our economy or for small business. It is merely a contribution to a Government policy that is wholly taken up with the plan for long-term economic growth, giving particular priority to small and medium-sized enterprises in this country as never before. We are reviewing the range of advice that the Government give to small businesses and the range of financial support available to them. We have reduced the tax burden on small employers, particularly for young employees. UK Trade & Investment is concentrating on small and medium-sized businesses that want to get into export markets. We are putting a great trade effort as a Government into supporting them. We are reforming UK export finance to make sure that it is available to those small exporters.

This Bill is far from being the entirety of what we are doing to turn Britain into a competitive nation again. It does not cover everything we are doing for the small businesses that provide much of the employment nowadays if one gets one’s economy moving again, but it makes a very important contribution. We actually have a Government who are anti-regulation, anti-bureaucracy and anti-pointless cost. I commend the Bill to the House as a very useful contribution to our efforts.

Amendment, by leave, withdrawn.

Question put and agreed to.

Bill accordingly read a Second time.

Deregulation Bill (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Deregulation Bill:

Committal

(1) That the Bill shall be committed to a Public Bill Committee.

Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 25 March 2014.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.

Other proceedings

(7) Any other proceedings on the Bill (including any proceedings on consideration of Lords Amendments or on any further messages from the Lords) may be programmed.—(Gavin Barwell.)

Question agreed to.

Deregulation Bill (Money)

Queen’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Deregulation Bill, it is expedient to authorise:

(1) the payment out of money provided by Parliament of any increase attributable to the Act in the sums payable under any other Act out of money so provided; and

(2) the payment of sums into the Consolidated Fund.—(Gavin Barwell.)

Question agreed to.

Deregulation Bill (Carry-Over)

Motion made, and Question put forthwith (Standing Order No. 80A(1)(a)),

That if, at the conclusion of this Session of Parliament, proceedings on the Deregulation Bill have not been completed, they shall be resumed in the next Session. —(Gavin Barwell.)

Question agreed to.

Detainee Inquiry

Lord Clarke of Nottingham Excerpts

Thursday 19th December 2013 Commons Chamber

[The Minister without Portfolio (Mr Kenneth Clarke)]

With permission, Mr Speaker, I would like to make a statement on a report being published today by the former Court of Appeal judge, the right hon. Sir Peter Gibson, on the treatment of detainees. It may first be helpful to remind the House of the circumstances in which Sir Peter’s inquiry was set up.

In the statement he gave to the House in July 2010, the Prime Minister explained that questions had been raised about the degree to which, in the years immediately after the horrific events of 11 September 2001, British officers had worked with those from foreign security services who were treating detainees in ways they should not have done. The Prime Minister made it clear that it has never been suggested that United Kingdom intelligence officers were themselves directly responsible for the mistreatment of detainees. Nevertheless, the allegations of involvement had done harm to our reputation as a country which believes in human rights, justice and the rule of law and had called into question the robustness of the rules under which our services operate.

The Prime Minister then set out his determination and the determination of the whole coalition Government to get to grips with these allegations so that the security services could get on and do their vital job of keeping us safe. First, he announced that we would seek to settle the civil compensation cases brought against the Government by the former Guantanamo detainees. In due course, a significant settlement was agreed with them in November of that year. Secondly, he introduced vital reforms to improve the operational, parliamentary and judicial regulation of the agencies. Thirdly, he invited Sir Peter Gibson to hold an inquiry that would deal properly with the historical allegations. Sir Peter was asked to begin immediately with his preparatory work, and his inquiry was due to start formally when the police investigations into these matters had concluded. The Prime Minister made it clear that he expected the inquiry to take no longer than a year.

Sir Peter and his panel and the Government have been frustrated in their hopes of progress by how long the police investigations have taken. It was not until January 2012 that the Crown Prosecution Service and the Metropolitan police issued a joint statement announcing that there was insufficient evidence to bring prosecutions in the two criminal investigations that had been preventing the start of the inquiry’s public work, but at the same time they also announced that new investigations would begin into alleged renditions to Libya in 2004. Of course, it is important that these matters be investigated properly by the police, but it raised the prospect of a still further indeterminate delay before Sir Peter could begin to call witnesses and hear evidence.

With the panel’s agreement, therefore, I announced in a statement to the House that the detainee inquiry would produce its report based solely on its preparatory analysis. This report was to highlight any particular themes or issues that should be the subject of further examination. A classified version of the report was to be presented to the Prime Minister, and an open version was to be made public. Nevertheless, the report is a substantial piece of work and the product of extensive independent analysis of some 20,000 written documents, some of which have not been examined by any previous review. It finds no evidence in the documents to support any allegation that UK intelligence officers were directly responsible for the mistreatment of detainees held by other countries overseas, and no material has been referred to the police for further consideration, but it identifies 27 issues that require further examination, grouped under four broad themes: interrogation and treatment; rendition; guidance and training; and matters relating to policy and communications.

The period concerned was one in which we and our international partners were suddenly adapting to a completely new scale and type of threat from fundamentalist religious extremists, and many UK intelligence officers had to operate in extraordinarily challenging environments, subject to real personal danger. Everyone in the Government and the agencies accepts, however, that this bravery has to be combined with clear rules of proportionality and accountability to ensure that we uphold the values we are working hard to defend. So, while we accept that intelligence operations must be conducted in the strictest secrecy, we also expect there to be strict oversight of those operations to ensure that at all times they respect the human rights that are a cornerstone of this country’s values.

The questions raised by Sir Peter’s report, combined with the other reviews that have been conducted of the period, paint a picture of Government and agencies struggling to come to terms with the new level of threat faced by this country. It is now clear that our agencies and their staff were, in some respects, not prepared for the extreme demands suddenly placed on them. The guidance regulating how intelligence officers should act was inadequate. The practices of some of our international partners should have been understood much sooner. Oversight was not robust enough, and there was no mechanism in the civil courts for allegations against the security and intelligence services to be examined properly. Most of those problems related to a relatively short period of time in the early 2000s, but they risked some damage to our reputation as a nation that prides itself on being a beacon of justice, human rights and the rule of law. I believe I speak for the whole House when I say that if failures and mistakes were made in that period, it is a matter of sincere regret.

From its very first days in office, this Government have been determined to enact reforms that ensure that the problems of the past cannot be repeated. Those reforms, and changes made under the previous Government, mean that the framework within which our agencies now operate is very different from that during the period that Sir Peter’s report describes. We have finalised and published consolidated guidance, setting out very clearly how intelligence that could lead to a detention should be handled, and how detainee interviews overseas should be conducted. Compliance with this guidance is monitored by the independent Intelligence Services Commissioner who reports annually to the Prime Minister. We have made it clear that Ministers must be consulted whenever an intelligence officer involved in a planned operation believes a detainee is at serious risk of mistreatment by a foreign state, even if that raises the risk of a terrorist action going ahead. We have dramatically improved Parliament’s ability to oversee the actions of the agencies—we did that through the Justice and Security Bill, which I took through the House on behalf of the Government last year. The Intelligence and Security Committee is now a Committee of Parliament, fully independent of Government, and the Prime Minister can no longer appoint its Chairman. It can require information of the intelligence agencies, not just request it. It has a new statutory right to review past intelligence operations and, for the first time, the Committee and its staff will have direct access to agency papers.

Finally, the Justice and Security Bill, which is now an Act of Parliament, introduced new court procedures to ensure that if allegations are made that things have gone wrong, even the most secret intelligence activities can be examined by an independent judge in a civil court of law. The combination of these reforms means that a line has begun to be drawn under a difficult period of the past. Despite that, it remains important that we deal properly with the 27 issues that Sir Peter’s report raises. It would be wrong to leave those issues, many of which relate to matters of policy, unexamined for the unknown amount of time it will take for the police to complete their related investigations. Equally, it would be wrong to ask a judge to examine material which in any way could compromise a live criminal investigation. It is the combination of those police investigations and the fact that they thwart a judge’s inquiry that have led to the frustrating delay in this case, which is felt by everyone involved.

Therefore, the Prime Minister has discussed and agreed with the Intelligence and Security Committee of Parliament that it will inquire into the themes and issues that Sir Peter has raised, take further evidence, and report to the Government and to Parliament on the outcome of its inquiry. Additional resources will be provided to the Committee to undertake that work, so that it does not affect the work it is currently doing on the killing of drummer Lee Rigby in Woolwich earlier this year, and its work on the following inquiry it has announced it will be undertaking into the necessary balance between privacy and security as regards communication interception.

To assist the Committee with its work, the Prime Minister has already asked the agency heads to provide him with full and detailed responses to the questions raised in the panel’s report for which they are responsible. He has also asked the Intelligence Services Commissioner to provide his views on current compliance with those aspects of the consolidated guidance that he monitors. Both of those reports will be made available to the Committee in full by the end of February next year.

I hope and expect that by the end of next year the ISC will have finished its report. I also hope that the police will have finished their investigations. It will then be possible for the Government to take a final view as to whether a further judicial inquiry still remains necessary to add any further information of value to future policy making and the national interest.

[Sadiq Khan (Tooting) (Lab)]

I thank the Minister for his statement and Sir Peter Gibson for his work and the interim report.

As I respond to the right hon. and learned Gentleman’s statement, I should make it clear that I have not had sight of the redacted version of Sir Peter Gibson’s interim report, which is published today.

I am confident that I speak for the whole House when I say that MPs from all parties condemn all forms of inhumane, cruel and degrading forms of treatment. Our freedoms and the high standards we promote in protecting human rights distinguish us as a nation, and our influence across the globe is strengthened as a result. Those freedoms are fundamental to our society, and our security and intelligence services work on an ongoing daily basis to protect us and the freedoms we hold dear.

We owe those services a debt of gratitude for keeping this country safe from threats—work that is dependent on men and women taking grave personal risks on a daily basis. Again, I know I speak on behalf of Members from all parties and the public in thanking them for their crucial role. Notwithstanding the crucial work that the agencies do to keep us safe, any allegations of involvement by members of our security and intelligence services in serious breaches of the law need proper and full investigation.

Any acts that might contravene the law in the ways alleged would run counter to everything our nation stands for and believes in. For that reason, it is important there is a full and proper investigation, exposing any wrongdoing and bringing those responsible to account. We also need to ensure that the appropriate lessons are learned and that there is no repeat in the future. We need to do that in as independent, open and transparent a manner as possible, in a way that maintains the confidence of the public.

It is now almost two years since the Minister stood at the Dispatch Box and announced that his Government’s inquiry, led by Sir Peter Gibson, was to be abandoned because of ongoing criminal investigations. I have some questions for the Minister that I hope he will be able to answer this afternoon. Why has there been such a long delay in the publication of Sir Peter Gibson’s report? Of course, we understand why sensitive parts of the report need to be redacted, but who decided which sections were redacted?

The Minister was categorical in January 2012 that a future judge-led inquiry would be restarted at an appropriate time in the future. That is particularly important in light of the commitments made by the Prime Minister, the Foreign Secretary and the Deputy Prime Minister that it had to be an independent judge-led inquiry. Bearing in mind that the interim inquiry by Sir Peter Gibson has identified 27 issues that require further examination, why have the Government changed their mind about the importance of the restarted inquiry also being judge-led?

There are recent examples of a judge successfully examining material in an inquiry without compromising criminal investigations. Will the Minister therefore explain why he has handed the inquiry into the issues that Sir Peter has raised over to the ISC rather than a judge? I have great respect for the Committee’s work and recognise that it has increased powers and increased resources, but does the right hon. and learned Gentleman believe that his original aspirations—and those of the Prime Minister, Deputy Prime Minister and Foreign Secretary—for the inquiry to be as independent, open and public as possible can be met by such an investigation?

Bearing in mind that much of the litigation in this area will inevitably be conducted under closed material proceedings, the scope and coverage of which the Government extended last year to include such cases, does the Minister agree that there is even more reason to ensure that any investigation is as independent and transparent as possible, and has the confidence of the public? Does the Minister believe that the public will have greater confidence in an ISC investigation than in a judge-led one? If so, will he explain his thinking?

Organisations representing detainees and their families had concerns that Sir Peter Gibson’s original inquiry was not compliant with articles 3 and 6 of the European convention on human rights. They chose to disengage from the process. I asked the Minister back in January 2012 what he intended to do to ensure that the inquiry’s legitimacy was bolstered by working to re-engage those groups and organisations. The interim findings, published by Sir Peter Gibson today, could have been used as an opportunity to show the non-governmental organisations and the public that the judge-led inquiry was working under its terms of reference to win back the confidence of the public. Does the Minister think that that is an opportunity missed?

My final question for the Minister is what additional steps he and the ISC will take to address the perception—fair or unfair—that today’s announcement of the ISC taking over the inquiry is a whitewash? Ultimately, the key aims are to get to the bottom of what happened and to ensure that lessons are learnt and justice is done, as well as maintaining public confidence. We will work constructively in any way we can to satisfy those aims.

[Mr Clarke]

First, I certainly share the right hon. Gentleman’s frustration with the delay, which was not contemplated by the Prime Minister or anyone in government when we embarked on this process. Indeed, we are extremely anxious to inquire as necessary as quickly as possible so that we can draw a line under this matter, learn lessons and ensure that the House can be totally confident that there would be no similar problems in future. The delay has been caused by the length of time taken for the police to investigate these matters. No politician has control over the police and it is right for them to inquire into issues where they believe it is justifiable to do so, but the result has been a timeless delay. Nobody has been able to proceed, in Sir Peter Gibson’s case, to the calling of witnesses and the taking of evidence, because that could compromise any criminal procedures and investigations that needed to take place in due course.

I join the right hon. Gentleman in praising the work of Sir Peter and his panel in producing this report, which, in the circumstances, is extremely valuable, but as the panel makes clear, it can come to no conclusions and make no findings of fact or conclusive allegations against anybody, and nor can it clear anybody conclusively, because it relied on documents that were frustrated when it came to calling witnesses.

Only one passage in the report is redacted. We did our best to reach agreement with the panel on the redactions and we were anxious to publish as much as possible, as was the panel. The redactions relate to a matter that is already subject to a public interest immunity certificate in the courts. In my and the Government’s opinion, there was no going back on that. Sir Peter and the panel acknowledge in the text that the redaction is of no significance to the general narrative and the issues set out in the report.

The Prime Minister was quite clear about preferring a judge-led inquiry. When he said that almost two years ago, I said we would set up the judicial inquiry once the police investigations were over and we could get the inquiry under way. That has not proved possible, however. Nobody contemplated at that time that in December 2013 we would still be trying to work out when we would be capable of proceeding.

A judge-led inquiry normally involves the publication of evidence as the inquiry proceeds, although in cases such as this the evidence is sometimes redacted. The whole process of a judicial inquiry could conceivably compromise a criminal investigation. It is true that some recent inquiries, such as that conducted by Lord Justice Leveson into a totally different matter, proceeded although criminal investigations were taking place, but Lord Justice Leveson avoided, very scrupulously, any areas that might compromise the criminal investigation. The trouble with Sir Peter Gibson’s scope is that the only matters that he is considering are the subject of criminal investigations, so the same situation could not arise. The Prime Minister has therefore come up with the solution of referring the issue to the Intelligence and Security Committee in the House of Commons.

I hope that the right hon. Gentleman can be persuaded that that is a very good way of proceeding. The ISC’s inquiry can start now, whereas a judge-led inquiry could not. Moreover, the House of Commons has greatly strengthened the ISC. When we debated these matters last year, Members in all parts of the House agreed that we should make the ISC independent, more powerful, and capable of calling for, rather than merely requesting, the information that it wanted. I think that we now have an opportunity to demonstrate that its work is a valuable addition to all the other requirements in our constitution to ensure that the activities of our intelligence services are properly accountable, and that, as far as is feasible, there is some democratic oversight of what can be done.

Finally, the right hon. Gentleman reminded me that, two or three years ago, non-governmental organisations and perfectly reasonable lobbies had criticised Sir Peter Gibson and refused to co-operate with him because, in their view, his inquiry did not comply with article 3 of the European convention on human rights. I remember that exchange, which disappointed me at the time. The organisations concerned appeared to be arguing for a full-blooded public inquiry in which everyone would be represented—detainees present, press sitting in the gallery at the back—and in which a great deal of evidence would be produced that would be of enormous value to this country’s enemies. No country in the world would sensibly deal with matters in that way. I think that the process we are adopting, with the use of the ISC, is the best way of ensuring that our intelligence services remain as strong and effective as we all want them to be, that their bravery is respected, and that they are protected when they carry out work on behalf of all of us, while also ensuring that there is proper scrutiny and a proper inquiry so that we can be reassured that the highest ethical guidelines are being followed.

[Sir Malcolm Rifkind (Kensington) (Con)]

May I, through the Minister, give the House an assurance about the work that the Intelligence and Security Committee has agreed to undertake?

As Members will know, in 2005 and 2007 the Committee published reports on the treatment of detainees and on rendition. Those reports turned out to be unsatisfactory and incomplete, because the intelligence agencies had not provided the Committee with all the relevant information, which, at the time, they were under no statutory obligation to do. As the Minister has said, that has now changed: the agencies are required to provide all the information, and the Committee’s own staff can go directly to them and inspect their files. It is on that basis, and on the basis of the extra resources that we will be given to prevent our other work from being interfered with or delayed, that the Committee believes that it can fulfil this duty, and is very willing to do so.

[Mr Clarke]

I am grateful to my right hon. and learned Friend for explaining why we gave the ISC more powers, and why that very powerful Committee, with its very strong membership, is capable of exercising its responsibilities and—we hope—producing the information that we require. The Gibson report did indeed indicate that when it had previously tried to conduct inquiries into detention and rendition, the Committee had not been given access to much fuller information involving all the incidents of detainee mistreatment that had been complained about, and the full internal investigations of rendition that had taken place. I have no doubt that my right hon. and learned Friend’s Committee will rectify that when it returns to the subject.

[Mr Jack Straw (Blackburn) (Lab)]

Thank you very much, Mr Speaker, for allowing me a response at greater length than is usual. May I thank the right hon. and learned Gentleman for his statement and the care he has taken in handling this matter, which I personally appreciate, and may I say that I share many of the sentiments he has expressed?

I greatly welcome today’s announcement that the Intelligence and Security Committee will now inquire into the questions raised by Sir Peter Gibson’s interim report, and that all relevant witnesses will be able to give testimony in person? Such a further inquiry is, surely, imperative given that the 27 sets of issues Sir Peter identifies have been based entirely on the available documents, and not on any statements, or oral examinations of witnesses?

May I tell the House that, as Foreign Secretary, I acted at all times in a manner that was fully consistent with my legal duties and with national and international law, and that I was never in any way complicit in the unlawful rendition or detention of individuals by the United States or any other state?

Is the right hon. and learned Gentleman aware, as Sir Peter brings out in his interim report and has long been known more widely, that in early January 2002 I agreed that the UK should not stand in the way of UK nationals who were detained in Afghanistan by the United States being transferred to Guantanamo Bay, and that I did so after careful legal advice and because, at the time, it was the only practical alternative to their remaining in custody in Afghanistan? But will the right hon. and learned Gentleman also accept that we never agreed in any way to the mistreatment of those detainees or to the denial of their rights, that we made repeated objections to the United States Government about these matters, and that I was able to secure the release of all British detainees by January 2005?

Does the right hon. and learned Gentleman agree that we should never forget the context: that the period covered by this report was the aftermath of the world’s most appalling terrorist atrocity ever, on 11 September 2001, and that in this period there was a continuing and profound anxiety about further terrorist outrages to come—anxieties that were all too well placed, as we all discovered on 7 July 2005?

Finally, will the right hon. and learned Gentleman agree that throughout this difficult period it was the exemplary professionalism and bravery of our armed forces and of the staff of our intelligence and security agencies which ensured that, in so far as was humanly possible, our nation and its people were kept safe?

[Mr Clarke]

I have the greatest respect for the right hon. Gentleman and I have considerable sympathy with him for the frustrating personal position in which he finds himself. There has been briefing around this matter and allegations have been made, and he has had no opportunity of appearing before Sir Peter and giving evidence, which he was anxious to do, and helping Sir Peter and the panel establish what actually happened during the period in question. He will now have the opportunity to do so when the ISC looks into these matters. Obviously, I cannot give any opinion on the issues the right hon. Gentleman raises because they relate precisely to what we are trying to get someone to investigate and reach a conclusion on, but it is certainly the case, as Sir Peter’s report makes clear, that one of the issues that will have to be looked at is whether Ministers were properly informed in full about what was going on and what necessary ministerial authorisation there was.

I also share the right hon. Gentleman’s final sentiment. I hope that all Members agree that we want the toughest and most effective intelligence services we can get and that we want our intelligence services to be at least as effective as those of any other nation. But we are a democracy and we also want to know that what they do is proportionate, complies with essential ethical standards and is authorised by a Minister, and that all the activities are carried out by people who are accountable to the Ministers responsible and to Parliament as well, when possible. That is the conclusion I hope we will eventually reach.

[Mr Andrew Tyrie (Chichester) (Con)]

The security services do a great job and they deserve our support, but I do not think this statement will help them. It is truly shocking that Britain has facilitated kidnap and torture, and the decision to abandon this judge-led inquiry will, I think, come to be seen as a mistake. Does the Minister agree that it is as essential for the standing of the intelligence services, on whom we depend, as it is for the wider public that we get to the truth about the extent of Britain’s involvement, as only that way can we restore trust? The Minister has said that the ISC will complete this work, but what confidence can the public have in its conclusions when that same body wrongly concluded that Britain was not involved in 2007, only to be flatly contradicted by a High Court ruling the following year? Is it not the case that the ISC’s new powers about which we have just heard are in any case heavily qualified—papers may be withheld on grounds of sensitivity and the ISC’s remit on operational matters is only permitted in certain circumstances?

[Mr Clarke]

First, I share my hon. Friend’s determination that we get to the truth of these matters and that they are investigated. Indeed, I share his concern that anybody from the United Kingdom should be involved in unlawful rendition, and I used to support his campaigns when we were both in opposition. I disagree with him about the way we are progressing now. The judge-led inquiry cannot proceed with taking evidence from people and publishing evidence alongside continuing police investigations which may or may not lead to some further criminal proceedings if anyone is eventually prosecuted. The question is do we, frustratingly, just continue to wait—I think it is more than three years since the Prime Minister made his statement—or do we seek to demonstrate that we really have now got a parliamentary Committee with the powers and authority required to do the job and report back to this House and the Prime Minister on its findings and recommendations?

I am sorry that my hon. Friend is dismissive of the Committee’s powers. He took part in the debates last year. We have considered them and the Committee has far more powers than it previously had. One of the things it will be looking at is how, when the previous Committee investigated treatment of detainees and rendition, it did not appear to have been supplied with information that was in fact being shared with others inside the Government and which had been assembled by the agencies for their own use. I think it is highly unlikely that that will be repeated and I think the present Committee can be relied upon to use the powers to demand papers and to go to the offices and look through the records of the agencies in order to revisit its conclusions on those matters.

[Margaret Beckett (Derby South) (Lab)]

May I ask the Minister to confirm my understanding of what he has said, which is that Sir Peter and his team have identified a large number of questions, many of them fairly familiar, to which they have been unable to find answers in the documents they have studied, and that in consequence they have not drawn conclusions? I ask him to reaffirm that that is the case, because my strong suspicion is that there will be those who will try to draw conclusions nevertheless.

[Mr Clarke]

Given that somebody has been briefing in advance, which I give the assurance is certainly not me or anybody with my authority, it is already clear that people are drawing the conclusions that we would anticipate them drawing if they already happened to be on one side of the argument or another before we started, and that, I am afraid, will continue. The right hon. Lady makes an extremely important point, and Sir Peter makes it clear at least twice in the report he is publishing today that it is quite wrong, and indeed impossible, to make findings of fact, and certainly any findings concerning any individuals involved, before he has called evidence, called them before him if necessary, given them an opportunity to explain and completed these investigations. That is why this inquiry identifies issues, which the ISC will now consider and decide whether and how to pursue. It has not made any findings of fact. In this country it would be quite wrong to make findings of fact of any kind, or to draw adverse inferences against anybody, when nobody has given any evidence, nobody has been challenged, and nobody has been given a chance to give their own explanation of events.

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

May I reassure my hon. Friend the Member for Chichester (Mr Tyrie) that the agencies do not have the power to withhold sensitive material from the ISC, of which I am a member? If they wish to do so, they have to appeal directly to the Prime Minister. In every other respect, they have to give us what we want to see. May I also remind the House that the ISC has been keen to get to grips with this matter, and that it actually started its own investigation, which had to be stayed when the Gibson inquiry was set up? Finally, may I give the House a personal assurance that, notwithstanding the context of trying to bring Libya back within the comity of nations, there are members of the ISC—one third of whom are senior Labour Members—who, far from endorsing any whitewash, would take a great deal of convincing that it was ever reasonable, proportionate or justifiable to supply people to Colonel Gaddafi’s regime?

[Mr Clarke]

I endorse what my hon. Friend says about the determination of the ISC to help the House to bring these matters to a proper conclusion and to form its judgments on them in due course.

[Jeremy Corbyn (Islington North) (Lab)]

Is not the heart of the issue the lack of effective accountability of the security services, and the fact that the ISC is not an ordinary parliamentary Committee? It is appointed by the Prime Minister and reports to him. Are not the Minister’s proposals just a way of sidestepping the need for a serious examination of the accountability issue and for holding an independent judge-led inquiry rather than the process that has been set out?

[Mr Clarke]

I have addressed that point already, and I would have hoped that my earlier answer would have satisfy the hon. Gentleman. My starting point is the same as his. We need the intelligence services, and I share the gratitude that many have expressed for the bravery and determination that they demonstrate in protecting the citizens of this country from the undoubted threats to their lives and safety. I want intelligence services that work properly. Indeed, I hope that they will steal the secrets of our serious enemies. I also hope that they will alert us to what those enemies are proposing to do, and help us to frustrate them. It is the experience of quite a number of people in this House that that is exactly what the intelligence services do, and that they do it very effectively.

It is also important, as the hon. Gentleman says, that what the intelligence services do is proportionate to the scale of the risk posed, that they are accountable and that, when they start going in for subterfuge, it is authorised by a Minister who is democratically accountable to this House. That is what marks out our intelligence services from those of totalitarian regimes, and that must always be the case. Those standards must apply to all the activities involved, including collecting data, surveillance and the activity of the agencies in the field. I am afraid that, in the modern world, such activities will always be necessary to protect the safety of our citizens, so long as we are not damaging our values and so long as we can be confident that everything is accountable and authorised by the proper people.

[Richard Ottaway (Croydon South) (Con)]

The Foreign Affairs Committee published its human rights report in October. In it, we expressed our concern that no progress had been made in agreeing with human rights groups how a successor to the detainee inquiry might proceed on a more transparent basis. I have heard what the Minister has just said about human rights groups, but given that we owe a lot to their efforts—there would have been no Belhaj investigation without them, for example—will he initiate discussions to see whether any common ground can be established?

[Mr Clarke]

It is also possible that there would have been no Belhaj investigation if someone in Colonel Gaddafi’s entourage had not carelessly left their papers lying about when fleeing Tripoli. That is no doubt one of the matters that will be inquired into in due course. I have the greatest sympathy with the human rights organisations; they are on the side of the angels, and they expound principles with which I wholeheartedly agree. However, I continue to believe—as I stated when we were arguing about closed sessions in civil proceedings last year—that they are being wholly unrealistic if they think that the intelligence services can be effective while the details of all their operations are being discussed in open court. We are not here to feed the media, or to help people who are gathering evidence for whatever civil litigation they might wish to bring. We are here to ensure that we have truly effective, working intelligence agencies that protect the citizens of this country. We make them accountable, but we also need to exercise common sense and have regard to their safety as we go about inquiring into their activities.

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

I welcome the report, and I believe that the whole House will welcome the statement from my right hon. Friend the Member for Blackburn (Mr Straw). We would expect nothing less from such a distinguished parliamentarian who has served the House and this country extremely well. May I reiterate the point that he made about the importance and desirability of oral evidence being taken? Much has been written about that, but perhaps we will now have the opportunity to set out the facts.

--- Later in debate ---

[Mr Clarke]

I very much hope so. Like me, the hon. Gentleman obviously regrets that it has taken three years to get to this point. I hope that the ISC will be able to report back by—who knows?—the end of next year.

[Rory Stewart (Penrith and The Border) (Con)]

It seems curious that, if a judge-led inquiry cannot proceed while a police investigation is going on, an ISC inquiry should be able to proceed. Another, more interesting, issue is the question of democratic accountability. My right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind) is a man of deep experience, and we are lucky to have him in the House. If the time should come when he decides to step down, however, we will need procedures of democratic accountability. Will my right hon. and learned Friend the Minister look into implementing the proposal in the Wright report that there should be an elected Chair of the ISC, subject to prime ministerial veto, who is ideally a member of the Opposition?

[Mr Clarke]

As I said in my statement, the problem with a judge-led inquiry is that it is normal, having taken evidence from witnesses, for it to produce evidence as the inquiry goes along. The ISC can proceed in whatever way it wishes, however, and it is not likely to do that. So we can start to proceed with the ISC inquiry, whereas to proceed with a judge-led inquiry could be more difficult and would certainly give rise to some controversy. I do not think that one route is necessarily preferable to the other, so long as both are strong, independent and effective in coming to their conclusions.

Whether we have done enough to strengthen the ISC will no doubt be easier to decide when it has completed the three important reports that it is working on. It is now looking into the background agency information on the murder of Lee Rigby, as well as examining the whole question of collecting material, surveillance and the balance between security and privacy. And it is now going to look into the considerable matters of detention and rendition, although I presume that it will not undertake all those inquiries contemporaneously. We wish the members of the ISC well in their labours; they have taken on a considerable amount of responsibility. If, at the end, we decide that the Committee needs to be strengthened further, that will be the time to look into that. It will not be a matter for me anyway; it will be for the House to decide on the procedures for appointing the Committee.

[Mr Speaker]

It is clear that the members of the Committee are not only immensely distinguished colleagues—it would be impossible to overstate the extent of their distinction—but destined to be very busy bees in the period ahead.

[Bob Stewart (Beckenham) (Con)]

My right hon. and learned Friend has already mentioned this point, as has the right hon. Member for Blackburn (Mr Straw), but may I reiterate how grateful we should be to the men and women of the security services? They often work in dangerous and lonely conditions, and they have to act with great gallantry, for which they get scant recognition. The House must recognise that fully.

[Mr Clarke]

I agree entirely with my hon. and gallant Friend. He understands how much the forces in the field, as well as the public in this country, depend on the accuracy of the intelligence available to them and on the ability of the people who work on our behalf to infiltrate the organisations with which we unfortunately sometimes find ourselves faced. I endorse all his sentiments in full.

[Mr Andrew Mitchell (Sutton Coldfield) (Con)]

My right hon. and learned Friend is to be commended for the candour and openness of his statement to the House today. Is it not clear that the right hon. Member for Blackburn (Mr Straw) was dealing with unprecedented and extraordinary circumstances in the aftermath of 9/11, and many people, of all different political persuasions, looking objectively at the decisions he took, will conclude that he discharged his duties then with complete responsibility and acted with total integrity?

[Mr Clarke]

I would expect that, certainly, and absolutely nothing in this report casts doubt on that integrity at all. The right hon. Member for Blackburn has the misfortune of being named in it because he had that most responsible office at the time, but he has already given his statement, as it were, to this House and it is quite obvious that the problems he was dealing with were immense and unprecedented, and that a great deal was done while he was Foreign Secretary to protect this country from further harm.

[Jacob Rees-Mogg (North East Somerset) (Con)]

Following on from the questions from my hon. Friends the Members for Chichester (Mr Tyrie) and for New Forest East (Dr Lewis), will my right hon. and learned Friend be able to give an undertaking on behalf of the Prime Minister that the reserve power to refuse sensitive information to the ISC will not be used?

[Mr Clarke]

As there is that reserve power, I cannot give an absolute guarantee that it will be a dead letter when we start. The Prime Minister is as anxious to get these matters resolved—to draw a line under them—as everybody in this House is. So it is inconceivable to me that the Prime Minister will be persuaded to start using reserve powers just to cover up embarrassment or to avoid the thing going too far, and I certainly hope that my hon. Friend the Member for North East Somerset (Jacob Rees-Mogg) is reassured by that; it is not what the reserve power is for. Unfortunately, there are occasions when there are just disagreements about how dangerous it is, or otherwise, for particular information to be disclosed widely at all. The Prime Minister has the invidious task of making the final decision on that if a real conflict arises, but there is no reason to anticipate at this stage that the ISC and the agencies are going to be in any conflict that would give rise to that.

[Mr Robert Buckland (South Swindon) (Con)]

Does my right hon. and learned Friend agree that perhaps the answer to the question posed by my hon. Friend the Member for Penrith and The Border (Rory Stewart) is that the ISC’s proceedings will be covered by parliamentary privilege. Has an assessment been made of the effect of privilege on the course of the ongoing police investigation, as I suspect it would be helpful in making sure that the two inquires are kept separate?

[Mr Clarke]

It is certainly important that the two are kept separate. I seem to recall that when the ISC was given its new status there was quite a bit of discussion about the extent to which privilege would apply to this particular parliamentary Committee, which is of course set up by statute, which is not usual for most of the others. I assume that the ISC can afford the full protection of privilege to the witnesses who are called before it, and that, again, ensures that they cannot suddenly find that this is all being held against them if they find themselves later, by any chance, in the unfortunate position of having to give evidence about the same facts again.

[Julian Smith (Skipton and Ripon) (Con)]

I understand that there were junior operatives on the front line who were raising these issues quite early on and whose concerns were ignored by the management of many of the agencies. Can my right hon. and learned Friend reassure the House that procedures are now in place for those who have information to be able to blow the whistle and for their concerns to be taken seriously?

[Mr Clarke]

I will not try to paraphrase the report, but that is one of the things it raises; there were about 40 occasions when our officers were raising queries about the treatment of detainees they were involved with and sometimes joining in the interrogation of. The question is: how were the queries handled? Not all of them appear to have been referred to Ministers, but these are the issues that are raised. This does underline that the agents involved were perfectly alert, and had the usual sensitivities, to the fact that the foreign officers with whom they were liaising were not necessarily following the same standards that we would wish. The thing I should emphasise, and should have emphasised more as I have gone through, is that this is what the consolidated guidance put out by the Prime Minister underlined when he put it out; it provided absolute clarity, for the first time, about how such concerns should be handled, and gave much better and clearer guidance to the officers themselves about what they should do if they are becoming concerned about the conditions in which detainees are being held.

[Mr Philip Hollobone (Kettering) (Con)]

These matters are clearly difficult for the police to investigate. My right hon. and learned Friend, like everybody else, is clearly frustrated at the amount of time this is taking. In his discussions with the Home Office, has he come to the conclusion that this is due to a lack of resources, of leadership or of co-operation with other Governments? What can be done to speed up the police investigation?

[Mr Clarke]

I wish I could find some way of speeding up the police investigation—I have wished that several times in the course of the past two or three years. But it is a fundamental principle that police investigations in this country are not subject to political control, and it is just not possible for a Government Minister to start intervening and questioning or second-guessing what the police are doing. I am assured that the police are carrying out thorough investigations and I only have estimates of when they might finish. That is why we have come to the situation, which has dissatisfied some of my colleagues, where we really have to get on and inquire into this, and the best way of proceeding is to put our new ISC to the test.

[Mr Speaker]

I am grateful to the Minister and to colleagues.

Bilderberg Conference

Lord Clarke of Nottingham Excerpts

Monday 10th June 2013 Commons Chamber

[Mr Michael Meacher (Oldham West and Royton) (Lab)]

(Urgent Question): To ask the Chancellor of the Exchequer if he will make a statement on the Bilderberg conference, which he attended.

[The Minister without Portfolio (Mr Kenneth Clarke)]

This is a first occasion for me, as I have never previously answered a question in the House of Commons on behalf of a private organisation for which the Government have no responsibility. I have been a member of the steering committee of Bilderberg for many years now—about 10 years, I think—and by chance this will be my last year, as we have a rule against being on the committee for too long, so I am on the point of stepping down. [Interruption.] Other roles are timeless, with no rules at all, but in this role I have now reached the end of my allotted span.

The Bilderberg organisation exists for the purpose of holding meetings once a year in various countries; it exists for no other purpose. This year, the meeting was held at a large hotel near Watford in Hertfordshire. I did not receive adequate notice of the right hon. Gentleman’s question—because I was not found in time—to put to hand the list of those who participated and the agenda we discussed. We always circulate those before the meeting, and they are readily available. I can certainly put any hon. Member in touch with a source of the list of those who took part.

Each year, we invite over 100 people—it was about 140 this year—drawn from both sides of the Atlantic; from Europe including Turkey; and from the United States and Canada. The people who attend are drawn from the worlds of government, politics, academia, defence and journalism. The people who attend change slightly each year. There is a core of those who attend regularly; different people come—[Interruption.] Well, I am trying to guess why on earth a parliamentary question has been asked about this and in what people are interested.

All the people who attend do so as individuals; we invite people as individuals. Nobody attends representing any particular organisation to which they might belong. A very interesting two or three days take place in which we have discussions on matters of public affairs. A very wide range of experience and a very wide range of political opinion is represented. I always find that it greatly adds to the depth of my understanding of what is being talked about and contemplated in many parts of the United States and in Europe as well. It is one of the many political gatherings I attend from time to time as part of the background to my activities.

If the right hon. Member for Oldham West and Royton (Mr Meacher) finds something deeply disturbing in all this, I can advise only that he finds different people on the internet with whom to exchange tweets, and perhaps the House might be allowed to return to some matter of rather more real public interest in which this House of Commons has a role to play.

[Mr Meacher]

I thank the right hon. and learned Gentleman for that filibuster. The Bilderberg conference involves about 130 of the western world’s top decision makers from the banks, the multinational companies, the European Commission—[Interruption.] I am coming to the politicians. It also involves representatives of the World Trade Organisation, the International Monetary Fund and the World Bank, and, of course, leading politicians from the United States, Canada, the eurozone and the United Kingdom. Given that those people were clearly discussing some of the biggest issues confronting the western economies at this time, why have we heard no statement from the Prime Minister, the Chancellor or, indeed, the Minister without Portfolio, all of whom attended in an official capacity? Why did none of them offer a statement, although decisions of this kind may well have a significant effect on UK Government policy or the livelihood of future UK citizens?

It is said by some, including the right hon. and learned Gentleman, that Bilderberg is a conspiracy. Of course it is not a conspiracy. Nevertheless, 130 of the world’s top decision makers do not travel thousands of miles simply for a cosy chat. Those people came here in order to concert their plans to deal with a particularly awkward stage in western capitalism, and in view of that we, the public, are entitled to ask some questions and to hold them to account. The Prime Minister said in 2010:

“For too long those in power made decisions behind closed doors…and denied people the power to hold them to account. This coalition is driving a wrecking ball through that culture—and it’s called transparency.”

In the same year, the Chancellor himself announced his commitment to

“the most radical transparency agenda that the country has ever seen.”—[Official Report, 8 June 2010; Vol. 511, c. 206.]

So why is there no transparency about a very crucial meeting that could affect us all?

Finally, can the right hon. and learned Gentleman explain how at the start of last week the Prime Minister could announce a crackdown on corruption and lack of transparency among lobbyists, and by the end of the week he and the Chancellor could be insisting that the largest and most powerful lobbyists’ group in the western hemisphere—an anti-democratic cabal if ever there was one—should operate in conditions of utter blackout and complete secrecy?

[Mr Clarke]

The Bilderberg meeting does not make any decisions. It does not have any resolutions. We could not possibly reach decisions, because of the range of opinions represented there. It is purely a Chatham House rules discussion between the people to whom the right hon. Gentleman referred. The shadow Chancellor was there, Peter Mandelson was there, the Prime Minister was there, the Chancellor of the Exchequer was there, and most of us said things during the discussion that would not have come as a surprise to any of us, because we knew what our opinions were. We go there for the chance of having an off-the-record, informal discussion with the range of people described by the right hon. Gentleman, who are indeed distinguished, but who are not remotely interested in getting together to decide or organise anything.

If the right hon. Gentleman would like an invitation—if that is what really lies behind his question—I will take his own distinguished claims to participation in the group carefully into account, although I will of course consult the shadow Chancellor before taking that a step further.

Let me say with the greatest respect that this is total, utter nonsense. I would normally regard the right hon. Gentleman as not the sort of person to be taken in by this sort of rubbish. We all take part in lots of political and other discussions as private individuals, under Chatham House rules, and we do not expect everyone to go out giving a version of what we have just said. No one alters their opinions when we are there. As for transparency, this Government are by a street the most transparent Government I have ever been in, but we can only be transparent in regard to things for which the Government have responsibility, and for what we are doing as a Government.

[Mr Speaker]

Order. The Minister without Portfolio said, rather prosaically I thought, that Peter Mandelson was there. I assume he was referring to no less a figure than Lord Mandelson of Foy. I think that is the person he had in mind.

[Mr Clarke]

No, we all attend extremely informally; we are not there in any capacity.

[Mr Speaker]

Order. The Minister can resume his seat. No one in the House has a better sense of humour than the Minister, but I thought that he realised that I was gently teasing him.

[Sir Tony Baldry (Banbury) (Con)]

Is it not rather cruel to oblige the Prime Minister to spend a weekend with Lord Mandelson of Foy and the shadow Chancellor? Did anyone at the Bilderberg conference go away any the wiser as to how the Labour party, if it were to win the next general election, would square the circle and manage to tackle the deficit?

[Mr Clarke]

I can only hope that some people did, but Chatham House rules prevent me from offering any further opinion on that question.

[Ed Balls (Morley and Outwood) (Lab/Co-op)]

The idea of Lord Mandelson attending any meeting informally is not something I have ever experienced.

As one of the British parliamentarians who attended the weekend meeting in Watford, alongside the Prime Minister, the Chancellor, Lord Mandelson, Baroness Williams and the Minister without Portfolio himself, may I ask the right hon. and learned Gentleman whether he agrees that it is important that Ministers and shadow Ministers meet regularly to discuss important issues with fellow Ministers and Opposition politicians, academics, journalists and business leaders from around the world? Can he confirm that over the past 60 years the annual Bilderberg meeting has properly been attended by Prime Ministers, Chancellors and shadow Ministers from all parties, including Lord Healey, Lord Ashdown and the late John Smith?

Does the Minister without Portfolio agree that it is welcome that the Bilderberg group now publishes a list of all those who attend the meeting and the topics that are discussed? Does he agree that the list of topics on this weekend's agenda, including “Can the US and Europe grow faster and create jobs?”, “Africa's challenges”, “Trends in medical research” and “Developments in the middle east” are vital issues with which every Government and Opposition must grapple for the benefit of all citizens?

We fully understand that it is because the Minister without Portfolio is a member of the Bilderberg steering group that he is well qualified today to answer the urgent question that was addressed to the Chancellor; he is not doing so because of his economic expertise. If on the other hand the Minister without Portfolio were to stand in at the next Treasury questions, we and all conspiracy theorists would rightly be concerned.

[Mr Clarke]

I am grateful to the right hon. Gentleman for perhaps addressing the question more straightforwardly than I did. He is obviously feeling a little defensive. He is dealing with it a little more seriously and probably much more wisely than I did. Everything he said is entirely right. I have attended Bilderberg meetings for many years. The only reason I attend is that my own understanding of political and economic problems in various parts of the world is improved by the opportunity to have an informal weekend with the kind of people who go to the conference. Discussing things with, among others, the shadow Chancellor in a completely informal way, off the record, is also of considerable value. I am sure that he agrees that we derive a great deal from the meeting and we hope that it improves our contribution to debates here, too.

[Mark Reckless (Rochester and Strood) (Con)]

Our hon. Friend the Member for Penrith and The Border (Rory Stewart) was invited to a previous Bilderberg conference, and I wonder whether the Minister, as a member of the steering committee, could tell us why he has been dropped. Has he done something wrong?

[Mr Clarke]

Every year, about half those participating have never been before. Quite a lot of people come only for one meeting. The number of people who come every year is comparatively small—there is a kind of core and for some extraordinary reason I have been a part of that core over the past decade. My hon. Friend the Member for Penrith and The Border (Rory Stewart) made a most distinguished contribution but he should not be disappointed that he was not invited again. The British committee was trying to bring in a rising star of a younger generation, because we do not want the whole thing to become an ageing establishment of people who used to be something important in government. I have no doubt that one day my hon. Friend will be implored to attend again, but I cannot guarantee when that will be.

[Mr Speaker]

I call Mr Dennis Skinner.

[Mr Dennis Skinner (Bolsover) (Lab)]

I wouldn’t be seen dead with them.

How come when all those media moguls, the bankers and politicians have been meeting together since 1954, not one of them was able to spot the recession coming—or maybe they caused it?

[Mr Clarke]

We have had trade unions there sometimes, and there are plenty of social democrats. I do not think anybody as left wing as the hon. Gentleman has ever attended, but if I scratch my memory I will probably remember somebody. Obviously, the hon. Gentleman forecast with absolute precision the collapse of capitalism in 2007. In that respect, I agree that his foresight was rather better than that of most pundits. We continue to meet, in the hope that next time we will see it coming with slightly more clarity.

[Mr John Redwood (Wokingham) (Con)]

As many UKIP voters fear that the Bilderberg group is a plot to promote more unaccountable European government, can my right hon. and learned Friend give them any reassurance or suggest why they might be wrong in that thought?

[Mr Clarke]

Nowadays we get accused of plots to establish a Government of the world, to poison the local watercourses, and to plan an invasion of the United States of America. Ten years ago, I was told I was attending a plot to hand over Britain to Brussels and to subordinate us to a “United States of Europe”, and the next instalment of the plot will come later. I cite that example in order to point out that a fellow member of the steering committee was Mr Conrad Black, and in private, as in public, Mr Conrad Black was not in favour of handing anything over to Brussels and was not in any way furthering that cause. I regret to say that Mr Black is, as I recall, the only member who ever attended who has since had the misfortune to be sentenced to a term of imprisonment, whereupon he withdrew from the Bilderberg meetings.

Seriously, however, I assure my right hon. Friend that the full range of opinion from left to right from across western Europe is pretty well represented at Bilderberg. That in itself shows that the idea that we are furthering any kind of agenda is absolute nonsense. If I were plotting to do anything, I would not assemble that particular group of people, because we would never agree on an objective.

[Mr Tom Watson (West Bromwich East) (Lab)]

Can the Minister confirm that he declared his trusteeship of the body that funds the conference to his permanent secretary when he was appointed by the Prime Minister?

[Mr Clarke]

I congratulate the hon. Gentleman. I am looking that up, because I had forgotten. Actually, I am a member of the steering committee. When we were hosting at Watford, I discovered that I am, among other things, a trustee of the British steering group, so I am checking, with the aid of my constituency office, whether I ever put that in. I assure the hon. Gentleman that I had completely forgotten that it was set up on that basis, long before the rules were established. The trustees have never met as trustees. All I actually do is sit as a member of a committee and play my part in helping with the organisation of a meeting, and that is all I have ever done.

[Mr Edward Leigh (Gainsborough) (Con)]

We have had a bit of fun today—indeed, who would want to spend a weekend of irredeemable tedium discussing world economics with a bunch of establishment toffs? Surely the serious point is this, however: why on earth does the House of Commons think it is necessary to discuss what was said in a private meeting?

[Mr Clarke]

Perhaps my hon. Friend was not here when I started answering this question and said that this is the first time I have ever risen in the House of Commons to answer questions on behalf of a private organisation for which the British Government have absolutely no responsibility.

[Philip Davies (Shipley) (Con)]

I know I cannot be described as a rising star, so should I not presume that my invitation was lost in the post? Can the Minister say whether or not, either formally or informally, he took the opportunity while at the conference to discuss his campaign to keep the UK within the European Union, and which members of the EU were there?

[Mr Clarke]

My hon. Friend will not be surprised to learn that I do not think I am being too indiscreet when I say that the subject of the future of the European Union and Britain’s participation in it did come up from time to time over the weekend. People from many countries have quite a strong interest in that subject, so it was discussed, but under Chatham House rules, and I can assure him that no conclusions of any kind were reached.

[Mr Philip Hollobone (Kettering) (Con)]

Is my right hon. and learned Friend the only British citizen on the steering committee, and who does he think his replacement will be?

[Mr Clarke]

The other members at the moment are John Kerr and Marcus Agius, and I do not know who my successor will be. We are slightly overrepresented on the steering committee, which is probably a reflection of the quality of debate in this place and elsewhere in the United Kingdom.

[Mr Speaker]

Order. I think the matters have been fairly fully explored.

Justice and Security Bill [Lords]

Lord Clarke of Nottingham Excerpts

Monday 4th March 2013 Commons Chamber

[Sadiq Khan]

I believe that one of the impact assessments gave a figure of seven, whereas the press reports I read over the weekend mentioned one of 15. For those reasons, it is important to attach great weight to the conditions to which David Anderson refers. We would not wish, inadvertently, to see more cases than the Government say they expect to be reaching a CMP.

[Minister without Portfolio (Mr Kenneth Clarke)]

It seems to me that we do not know how many of these cases there will be, because we do not know what effect the new process will have. This is becoming a popular jurisdiction and the number of cases is slowly climbing, because no defence is offered to people’s claims and they are being awarded quite large sums of money. Once it is possible for the Government to defend themselves, people will, presumably, think more clearly about the substance of their allegations before bringing claims, and we just do not know how many we will have.

[Sadiq Khan]

May I adopt the Minister’s arguments in support of our sunset clause, which we will be debating later? He cannot predict the number of cases, which is why we think a sunset clause is appropriate.

--- Later in debate ---

[Sadiq Khan]

I thank the right hon. Gentleman for that clarity, which shows the advantages of being nice to Liberal Democrats. In case any of his colleagues have any doubt about the advice given, I have the report with me and will remind them of what the Joint Committee said just last week on the Government’s manoeuvres upstairs in Committee.

Given that in Committee the Minister unpicked the Lords changes to the Bill, amendments 26 to 40 are designed to emulate the same improvements as were made in the other place. Our amendments seek to put in place appropriate checks and balances on the use of CMPs. We do not underestimate the difficulties in reconciling the issues of justice and security as contained in the Bill’s title, but this is difficult and not impossible. By putting appropriate measures in place, we believe that the use of CMPs could be made proportionate to the scale of the problem they are intended to address. As has been said, our position is backed by the Joint Committee on Human Rights, whose most recent report systematically goes through the changes made in Committee by the Government and is consistent with the Government’s independent reviewer of terrorism legislation and with the views of the House of Lords.

So here we are once again, trying at a late stage in proceedings to bring some balance to the proposals in front of us. Our amendments address four main areas: judicial balancing both outside and inside proceedings, the use of CMPs as a last resort and equality of arms. I shall deal first with judicial balancing.

We have consistently agreed with David Anderson when he said that

“the decision to trigger a CMP must be for the court, not the Government.”

The original bill, as published, included no substantial role for the judge. I accept that this has been moved on since then, but some of the progress made in the other place has now been undone. Despite claims to the contrary, the Bill does not give a judge the proper discretion to decide between whether to hold proceedings in the open or to move proceedings behind closed doors. The Government chose to remove the Lords amendments that put in place a proper judicial balancing of these competing interests—the so-called Wiley balance.

Last week’s report from the Joint Committee on Human Rights is very powerful on this issue. I pay tribute to the Chair of the Committee, my hon. Friend the Member for Aberavon (Dr Francis), for all its hard work on this. In its report—Liberal Democrat colleagues will be keen to hear this—the Committee says that

“there is nothing in the Government’s revised clause 6 which replaces it with anything requiring the court to balance the degree of harm to the interests of national security on the one hand against the public interest in the fair and open administration of justice on the other.”

[Mr Kenneth Clarke]

I must have misheard the right hon. Gentleman. He seems to think his amendment widens the discretion of the judge. It actually narrows it. The Bill as it stands says that the judge may hold a closed session after the three conditions are satisfied, which are mainly the fair and effective administration of justice. We have now reached the situation where critics are so nervous about what the judge may do that they want to lay down additional tests that the judge must put to himself before he makes a judgment one way or another. Lord Woolf, the former Lord Chief Justice, this morning made it clear that the judge now has complete discretion to decide what to do, and it is the critics who are so worried that there might be closed material proceedings that they are trying to put in extra tests to try to put the judge off. As the right hon. Gentleman’s amendments narrow the judge’s discretion, he might at least put his case the right way round. As the Bill stands, the judge has a pretty unfettered discretion.

[Sadiq Khan]

On at least four occasions over the past 18 months the Minister has told the public, the media, MPs and Members of the House of Lords that judges had full discretion, notwithstanding the four changes that he has agreed to make over the past 18 months. He cannot be right on all four occasions. Let me tell him what the House of Lords did, pursuant to the report of the Joint Committee on Human Rights. It put on the face of the Bill the balancing exercise that a judge should undertake, balancing on the one hand the public interest in the open and fair administration of justice and the public interest in making sure that there was no damage to our national security as a consequence of material being disclosed. In Committee the right hon. and learned Gentleman tried to tie the hands of that balancing exercise. In a new report last week from which I quoted, the Joint Committee said that he tried to do the very same thing. He is again arguing today why he is right and all the members of the Joint Committee are wrong.

--- Later in debate ---

[Sadiq Khan]

I really must make progress; there will be time for hon. Members to contribute after I have finished.

David Anderson, the Government’s independent reviewer of terrorism legislation, has himself said that

“the court’s power to order a CMP should be exercisable only if, for reasons of national security connected with disclosure, the just resolution of a case cannot be obtained by other procedural means (including not only PII but other established means such as confidentiality rings and hearings in camera).”

We should not legislate in a way that means that CMPs will replace tried and tested methods for dealing with sensitive material in open proceedings if those methods will do the job. Only if it is deemed, after consideration by a judge, that those tried and tested measures cannot be employed in a way that would allow important evidence to be used in a public court, would the option of a CMP be considered. The Bill as it stands does not allow for this. Our amendments would not, as some have argued, including the Minister on Second Reading, mean that a full and lengthy PII exercise had to be undertaken before a CMP could even be considered. On the contrary, the key word in all this is “considered”. Our amendments would deliver this. I hope that the House will support that as part of our efforts to maintain as much as possible of the precious traditions of openness in our justice system.

Some have interpreted the Government amendments tabled at the eleventh hour last week as delivering what we and others have asked for. They will lead to a Minister—in other words, one of the parties in the civil action or judicial review—considering the use of PII and the judge having to take their conclusion into consideration when deciding whether to grant a CMP. In our view, this is not an appropriate check and balance, and we will therefore look to amend the Bill accordingly.

Amendment 38 deals with the Wiley judicial balance within the CMP. The Government’s argument for resisting this is the same as their reason for resisting full judicial balancing on the decision on whether to order a closed proceeding in the first place. We are not persuaded of their arguments in that circumstance. We believe that this is another key component of judicial balancing and a crucial check and balance.

Our amendments also deal with the equality of arms. On Second Reading, the Minister said:

“We will also accept that any party, not just the Government, should be able to ask for a closed material procedure.”—[Official Report, 18 December 2012; Vol. 555, c. 722.]

We welcomed that statement. After all, equality of arms is backed by the JCHR and the independent reviewer of terrorism legislation, David Anderson QC. However, following the changes that the Government made in Committee, we now know that their idea of equality of arms is very different from everyone else’s. The JCHR report published last week is highly critical of what was done to the Bill in Committee. It says:

“in our view the Government’s amendment enabling all parties to proceedings to apply for a CMP does not provide for equality of arms in litigation because it would unfairly favour the Secretary of State”.

In short, it is a two-tier equality of arms—or, in the real world, an inequality of arms. Our amendment would restore proper equality of arms. I am pleased that the Government have decided to support us and have signed our amendment.

Some have said that the debates at this late stage are nothing more than angels dancing on the head of a pin. I disagree. There remain some fundamental differences, chiefly about judicial balancing and last resort, about which we are still concerned. I hope that colleagues in all parts of the House will support, in particular, amendments 30 and 31. We will first need to vote on amendment 26, which is a paving amendment that would ensure that the Bill contained the proper checks and balances that it needs without having to rely on the other place—with Lib Dem support, I hasten to add—to make sure that there is equilibrium in the great balancing act that we face between our national security and the rights of individuals.

[Mr Kenneth Clarke]

I rise early in the debate because I want to speak to the Government amendments that stand in my name. I have already added my name to two Opposition amendments. As we do not have a great deal of time to discuss some quite complex issues, it will be helpful to set out what those issues are so that we do not have so many interventions when the person who is being intervened on is agreeing with the person making the intervention, as happened several times to the Opposition spokesman.

I think that an ordinary, intelligent person from the outside world who is listening to this debate would be rather baffled as to what is causing us so much concern. It has seemed to me for some time that we are in complete agreement on policy and there is no disagreement between us on the principles of the very great need to protect national security and the equally great need to protect the rule of law, the principles of British justice and all the values that we seek to uphold. We have spent the entire time trying to work out a process for reconciling those principles.

The Opposition spokesman entirely agreed with the interventions by the right hon. Member for Salford and Eccles (Hazel Blears) and my hon. Friend the Member for New Forest East (Dr Lewis), who both put forward the principle that we must find some way of trying these cases properly so that everybody knows that there is justice and that a judge has been able to reach a conclusion on the merits or otherwise of the allegations made. Nobody has yet got up to say otherwise. The real critics of this Bill—I do not think that they are Members of this House—say that, somehow, it is a lesser evil to keep paying out millions of pounds in order to not extend the principle of closed proceedings further than it already exists in British law. The idea seems to be, “What a pity. We hope that none of the millions will go to bad causes,” although I do not think that that argument has an advocate in this place.

What we are doing—we have been having this debate for months—is discussing amendments that would underline the fact that this is a judge-made decision, made with proper discretion and taking the right things into account, and that closed material proceedings will be used only in a very small number of cases that would give rise to issues of national security if they were held in open court.

[Several hon. Members]

rose—

[Mr Clarke]

I shall start giving way in a moment and will do so at least as frequently as my opponent, the right hon. Member for Tooting (Sadiq Khan).

I will not use my own words to make the general case for the measure. I think I am in agreement with the Labour party, the Liberal Democrats and, I hope, my own party, or at least the bulk of it—that is sometimes the least certain proposition one can make in British politics these days. A collection of people whom I admire wrote to The Times a few months ago:

“In national security matters our legal system relies upon a procedure known as public interest immunity. Under PII, evidence which is deemed to be national security sensitive is excluded from the courtroom. The judge may not take it into account when coming to his or her judgment.

This procedure is resulting in a damaging gap in the rule of law. To protect national security evidence from open disclosure the Government is forced to try to agree substantial settlements with claimants who have not had the opportunity to prove their case. Civil damages claims made against the security services are not therefore being scrutinised by a judge in a court.

It was to resolve a similar problem that previous Governments introduced Closed Material Procedures (CMPs) in immigration and control order cases, and courts have ordered them by consent in the past.

CMPs are not ideal, but they are a better option where the alternative is no justice at all. The Special Advocates who operate within them are more effective than they admit…and the Government loses cases in these hearings.

We believe the Government is right therefore to extend the availability of CMPs to other civil courts. This will ensure that the security and intelligence agencies can defend themselves against allegations made against them, that claimants are given the greatest opportunity to prove their case, and that concerned citizens will have the benefit of a final judgment on whether serious allegations have foundation.”

That puts the general case impeccably. One of the signatories was Lord Reid, the former Home Secretary, which is not too surprising given that most Opposition Members who are former Ministers with experience of dealing with these matters are pretty supportive of the Government and have been throughout, particularly those who are still up to date because they are on the Intelligence and Security Committee. Another signatory was Lord Mackay of Clashfern, who was a Conservative Lord Chancellor many years ago, but who was the most independent Lord Chancellor I can recall. He is an impeccable lawyer and a man whom no one could accuse of not having regard to the rule of law.

I stress that the former Lord Chief Justice, Lord Woolf, whose name has entered the fray again today, is a great defender of personal liberties who invented, I think, the whole concept of judicial review by which Governments are now held to account better by the courts for ministerial decisions. I have great respect for his opinion and today—this is my final quote before I start to give way—he has written:

“What is important is that the operation of…CMPs should be under the complete control of a judge. That the Government has now given him that control is to be welcomed. The Bill now ensures that we will retain our standards of general justice, while also putting an end to the blindfolding of judges in this small number of cases.”

I think that we all agree. There may be some rare exceptions from the ultra-liberal end of the left or the right, but by and large practically everybody in this House agrees with that case. What we are arguing about now is the fact that every time we table an amendment, further amendments are tabled in order to make it more practically difficult ever to have a CMP. The lawyers who are persuading various groups to table those amendments and who are drafting them for them actually think that the law as it stands is perfectly satisfactory, but they keep trying to invent fresh conditions, tests and processes to get in the way of CMPs.

The Litvinenko inquest is proceeding under the old law. I gave in to all the lobbyists who said that none of this should ever apply to inquests. In inquests, secrecy must therefore remain the order of the day so far as the coroner, the family and everyone else is concerned once a PII has been applied for and granted. I do not think that that should apply to civil claims, but people will no doubt try to persuade me that it should.

[Jeremy Corbyn (Islington North) (Lab)]

I thank the Minister for giving way and for the way in which he is trying to present a not very strong case. If we have a Security Service, it must be accountable, and if we have a criminal law process, it must be open. The process that is being introduced and previous processes end up, in effect, with people being criminalised in secret without knowing the full case against them. Does he not accept that there is a danger in the process that he is presenting?

[Mr Clarke]

The Bill most emphatically does not apply to the criminal process. I would be against any evidence of which the offender was not aware being given in a criminal case. That gets us into the control order problem, which is that sometimes there is no evidence in a case, but responsible people are terrified of the prospect of the person being left at liberty because we cannot prosecute. However, that is for another day. I do not believe that there can be a criminal case with secret evidence. I quite agree about that.

In civil cases, I would prefer there to be open evidence all the time. I particularly agree with the hon. Member for Islington North (Jeremy Corbyn) that the security services must be accountable to the courts and to Parliament wherever possible. At the moment, they are not accountable to the courts, because all the material that the Government want to bring in their defence cannot be given in open court. By definition, this is not evidence about our being involved in torture, rendition or anything like that. We deny that we are and most of the allegations are not that we have done such things, but that we have been complicit in another agency doing them. The evidence that we are talking about is evidence that the security services and their lawyers believe would enable them to defend the action and refute the allegations. At the moment, because we cannot hear such evidence in closed proceedings and because it cannot be heard in open court, it is not heard at all. We just offer no defence and pay out. If we have this procedure, it will make the services more accountable to the courts.

The other half of the Bill greatly strengthens the work of the Intelligence and Security Committee, which I approve of, by making it a proper Committee of this House and by strengthening its powers. I agree with the hon. Member for Islington North that we must reassure the public that we are defending our values by the most reputable methods and that we are respecting human rights. There must therefore be accountability to the courts and to Parliament.

[Several hon. Members]

rose—

[Mr Clarke]

I will give shorter answers if I can. I will give way to a Member on my side of the House.

[Sir Richard Shepherd (Aldridge-Brownhills) (Con)]

My right hon. and learned Friend has come against the rock of the special advocates. They have looked at this business and rejected it universally. They are the ones who are supposed to carry these court cases through and they do not like the proposal. I do not like it and, as this debate progresses, I think we will find that many more Members of this House do not like it either.

[Mr Clarke]

I thought we were doing all right with this Bill until the special advocates came out with their remarkable evidence to the Joint Committee on Human Rights. I agree that that got me into a lot of trouble. I do not understand why they take that ferocious view. As I have demonstrated before with plenty of quotations, they do win cases. One would think that they are powerless, but they do succeed. The judges accord to special advocates much more power of persuasion than they seem to accord to themselves, because judges want to have a special advocate to help them test the evidence when they are reaching their conclusion.

Of course, special advocates act on behalf of the claimants, as do most of the people who make these objections. I am not accusing them, because their motives are the highest and most honourable, but they have got into a frame of mind where they think that anything that is not advantageous to the claimant must be bad. Even at the height of my enthusiasm for human rights and the rule of law, I cannot get myself into that position. Claimants should be obliged to prove their case and I believe that special advocates are the most effective means that we have of testing the Government’s case on behalf of claimants.

[Dr Huppert]

The Minister made the excellent point that none of this would apply to criminal cases in which somebody’s liberty could be at risk, which is important. It is clear that there will not be closed information in such cases. Will he confirm whether civil habeas corpus cases will be covered? Could there be closed proceedings in such cases, which could affect somebody’s liberty?

[Mr Clarke]

My off-the-cuff reaction is to say no, but I confess that it is an uninformed one, so I think I ought to check that and return to it later.

[Several hon. Members]

rose—

[Mr Clarke]

I will give way once or twice more, then I must resume my speech, otherwise this will turn into a question-and-answer session. I must finish my speech, as the right hon. Member for Tooting did with great difficulty.

[Yasmin Qureshi (Bolton South East) (Lab)]

May I reiterate what the hon. Member for Aldridge-Brownhills (Sir Richard Shepherd) said? If special advocates, who are independent people and fully aware of cases such as those in question, are expressing reservations and think the provision is wrong, should the Government not take notice of that?

[Mr Clarke]

We have taken notice of it, but I do not understand why special advocates seem to be taking up the arguments of people who say that we should never allow anybody to consider the evidence in question. I never thought that PIIs were a perfect process, but the critics have suddenly decided they are now that we have brought forward CMPs. If there is a PII, the judge cannot take account of such evidence, claimants and the defence cannot use it, and the lawyers do not know about it. That is held up to me as a superior position to the one we are putting forward, which will mean that the judge can consider that evidence.

[Rory Stewart (Penrith and The Border) (Con)]

Will the Minister tell us in broad terms what concessions he has made since the Bill was conceived, and whether there are any further concessions that he can make to address any concerns?

[Mr Clarke]

I was about to move on to that point, having made the general case. Every time I make concessions, they are pocketed and there is a fresh set of demands. I have known that to happen before, but never on the same scale as with this Bill. I will try to explain that when I get on to the matter.

[Caroline Lucas]

I see that the Minister is about to get some advice from behind him on habeas corpus cases. The advice we have received is that they are regarded as civil actions, and that habeas corpus could therefore be at risk in future.

The Minister should not get carried away with the idea that everybody supports the change. Some parties, such as the Green party, do not. That will not surprise him, but the Liberal Democrat conference did not support it, either. It talked about it as a serious risk to public trust and confidence. Many people out there do not support the change or think it is necessary, and I have yet to hear any real argument as to why it is.

[Mr Clarke]

I respect the hon. Lady’s sincerity, and she represents those who are against the whole policy. I have met such people outside—to use a flippant phrase, some of my best friends are human rights lawyers, and I have met people who say that the whole idea of CMPs is so bad that it is a lesser evil to keep paying money to the ever-mounting number of people coming forward. That is a judgment for the House to make, but the three political parties do not contain many members who agree with that, and I do not think the public agree with it. I would prefer to see a judge test the evidence and come to a conclusion.

[Several hon. Members]

rose—

[Mr Clarke]

I will move on, but I will remember who I have not given way to.

I have been given advice on civil habeas corpus cases, and I will read it to the House. It says, “We can’t envisage any such cases.” I find that inconclusive, so I will make further inquiries. The question bowled me middle-stump, so I have some sympathy with the unfortunate lawyer in the Box who has had to decide what on earth we can say, and I think we ought to be allowed to go away and consider the matter.

On the point that my hon. Friend the Member for Penrith and The Border (Rory Stewart) made, Lord Woolf mentioned in his letter this morning that before the Committee stage, and again last week, the Government have tabled a lot of significant amendments that, in our opinion, meet every practical objection that has been made by the Joint Committee on Human Rights, the Opposition, my colleagues in the Liberal Democrats and my noble Friends, who defeated us several times. We accepted quite a lot of those defeats, which were improvements to the Bill.

I have tabled four more amendments today and added my name to two Opposition amendments. I considered the point about equality of arms; I think it is slightly overdone but Government Members have added their names to two Opposition amendments so that any party to the proceedings can apply for a declaration that there should be closed material procedure.

Let me remind hon. Members where we have got to. There has been enormous movement since the Green Paper, and quite a big movement while the Bill has proceeded through the House. The court may grant such an application and order a CMP if it—

[Several hon. Members]

rose—

[Mr Clarke]

Let me remind hon. Members of the position we have reached and then I will give way.

--- Later in debate ---

[Zac Goldsmith (Richmond Park) (Con)]

I welcome my right hon. and learned Friend’s comments. Will he tell the House whether there is a clear and understood definition of the term “national security”?

[Mr Clarke]

There is no definition, because all attempts to define it have got one into worse difficulties.

It is possible to exclude evidence from a case altogether under the existing public interest immunity procedure; the Bill does not touch that. The present PII law will be completely unaffected by the Bill, so people could still go for a PII. One is obviously being actively sought at the moment in the Litvinenko inquest, although I know that only from what I read in the press. That kind of exclusion could be claimed on the ground of damage to international relations, if the Government of some third-party state would be upset if certain evidence were to be published. That goes beyond questions of national security and into total secrecy, allowing the Minister to withdraw the whole blasted thing from the proceedings and not letting even the judge use it. That measure goes much wider. Such exclusions on wider grounds happened under the previous Government.

We are sticking to national security, however, and judges, using the completely unfettered discretion that we are now giving them, will no doubt have regard to what I say. What we have in mind are things that would cause damage to national security, by which we mean the safety of our citizens, our attempts to counter terrorism, and threats to international order among the wider public. I can assure the House that I am not in favour of excluding ministerial pigs’ ears. I am sure that the previous Government made more of them than we did, but I do not believe that that sort of thing should be put away in closed proceedings under any Government.

[Mr George Howarth]

Is not national security rather like reasonable doubt—two well understood English words, as a judge advised the jury in a trial the other week?

[Mr Clarke]

Amendments have been tabled to Bills of this kind to try to define the concept, but that leads to more trouble than it is worth. I entirely agree with the right hon. Gentleman that reasonable doubt is a very good comparison.

[Sir Malcolm Rifkind]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second. I am sorry not to give way to the Chairman of the Committee at the moment, but I will before I finish.

I think I have made my point that people are grasping at the straws that keen human rights lawyers have presented to the critics of CMP, and trying to bring in a process to prevent them from happening. That would be the effect of most of the amendments. We have accepted the spirit of the JCHR’s amendments, and we have addressed the questions on unintended consequences.

Let us consider amendment 30 and the Wiley balance. I have just mentioned the unfettered discretion that we are giving to judges. Should we add to that discretion a confinement so that a judge would have to apply what is known as the Wiley balance, which is used in PII? I will not repeat the arguments used by my right hon. and learned Friend the Member for Kensington (Sir Malcolm Rifkind), the Chairman of the Intelligence and Security Committee and, I think, the right hon. Member for Salford and Eccles. PII is not the same.

The amendment that the Opposition have been persuaded to table is not actually about the Wiley balance. Whoever drafted it has realised that that would not be quite good enough for their purposes, so they have altered it by adding the words “fair” and “open”. I do not understand how, having decided that national security would be at risk and that that would be relevant to the issues, and that such a measure would be necessary for the fair administration of justice, someone might then decide that they preferred open justice and that the evidence should be given in public anyway. That is a complete non sequitur, in a way. It would be slightly absurd to do that. It would be like saying to the judge, “If you agreed with the Green party and were against the policies in the Bill in the first place, you can now throw everything out anyway because you need to consider whether you would prefer open justice, after those three conditions have been satisfied.” That would be a slight non sequitur, and it is also a bit deceptive—not deliberately; I am not accusing anyone of acting improperly—to describe this proposal as the Wiley balance. It is the Wiley balance with bits added, which some ingenious lawyer has come up with to try to put a spoke in the wheels.

[Mr Andrew Tyrie (Chichester) (Con)]

I am very grateful indeed, in the circumstances, to the Minister for giving way. Did I hear him correctly? Perhaps I will give him the opportunity to correct the suggestion, which I think he pretty much made a moment ago, that the remaining opposition to the Bill has been got up by a few human rights lawyers. Will he explain, which he has still failed to do, why the only people who really understand the system—the people who have experience both of PII and CMPs; that is, the special advocates—have concluded absolutely clearly and unequivocally:

“The introduction of such a sweeping power could only be justified by the most compelling reasons and, in our view, none exists.”?

[Mr Clarke]

I do not think that I would conceivably use the language that my hon. Friend tries to attribute to me. Human rights Members are fervently opposed to the whole idea of CMP. They are extremely able lawyers and draftsmen. I am left in wonder and admiration at their ingenuity in producing an endless procession of amendments, so that every time their principles are adopted by the Government in amendments at various stages, a fresh set of amendments is tabled introducing new concepts that are designed to elaborate on the process. That is enough praise for my opponents, but it is ingenious.

We are not putting in the Wiley test, because we have three perfectly effective tests and complete discretion for the judge anyway. The Wiley test is used for PII, which is a quite different process that tries to exclude the evidence entirely from the judge, the claimant, the lawyers and everybody. PII is an application for total silence. We do not need to put the test in for that.

Amendment 31 is more difficult, as it requires that a CMP may be used only as a last resort. The circumstances I have described are getting pretty near to the last resort. We expect only a handful of cases, because we do not think our intelligence agencies will be sued very often. They are strictly enjoined to follow the principles of human rights, and not to connive at torture and everything else, but we do not know, and the conditions we have applied make it clear that we will only ever have CMPs in national security cases, unless a future Government try to relax them.

The trouble is that the last resort argument will undoubtedly be used for going through the whole PII process before starting on CMPs, and there are some people who want to do that. They say that they do not like the fact that the Secretary of State has to consider an application for PII. They want the Secretary of State to go through the whole process. They do not like the fact that the court has other tests for going to a CMP. They want the court to go through the whole PII process before it gets there. Why? Because it could take months or years. The Guantanamo Bay cases had hundreds of thousands of documents—it is a very elaborate process.

[Mr Julian Brazier (Canterbury) (Con)]

Will my right hon. and learned Friend give way?

[Mr Clarke]

I will in just a second.

There is a serious risk, in our opinion and in the opinion of those who have considered the drafting, that it will introduce a huge, expensive and discouraging process. David Anderson, the independent reviewer of terrorism legislation, has described this sort of clause as requiring the court to bang its head against a brick wall. I think the Lords Constitution Committee also said that it did not want full PII. The hon. Member for Hammersmith (Mr Slaughter), who led for the Opposition, said this:

“None of us wants exhaustive PII or a Minister tied up for a year exhaustively going through paperwork, if it were obvious to all concerned that it was not needed”.––[Official Report, Justice and Security (Lords) Public Bill Committee, 5 February 2013; c. 167.]

We are resisting amendment 31 because we think ingenious lawyers will use the argument that we have to settle down to a few years of process and paperwork to satisfy the requirement exhaustively to consider every other possible way of trying the case.

[Sadiq Khan]

Does the Minister accept that good judges will throw out frivolous applications by ingenious lawyers? If he is concerned about judges spending too much time considering documents, why does Government amendment 47 put the same obligation on the Secretary of State to consider PII, which we are seeking to put on the judge? All we are asking is that the judge considers PII, and the Government amendment requires the Secretary of State to consider it. Rather than the defendant in a claim having to consider, why not the judge?

[Mr Clarke]

Let us not make this a competition about which of us most trusts British judges to make reasonably sensible decisions. I have just described how we have put the whole thing in the hands of the judge, and I think that the right hon. Gentleman agrees that a British judge will instinctively want an open hearing and will have to be persuaded to go closed, and he will only do so as a last resort—to use a colloquial term—because his or her preference will be for open justice. There would have to be a very compelling reason for going closed.

--- Later in debate ---

[Patrick Mercer (Newark) (Con)]

On a wider point, has my right hon. and learned Friend thought how much comfort this will give to their cause, in the world of propaganda, when CMPs are used against terrorists?

[Mr Clarke]

I have, but with the greatest respect to my hon. Friend’s expertise in this area, I must say that one of the things that most troubles me, as the Minister enthusiastically in charge of the Bill, is not just the need to save the money or the irritation of being unable to defend claims, but the considerable damage done to the reputation of our security services because they are unable to defend themselves. The House always insists on being persuaded that the security forces abide by human rights and do not go in for malpractice or unlawful rendition and so on, but their inability to defend themselves against allegations that they have done so is undoubtedly used by our enemies against our security services, and they are very conscious of it—as are our allies and those with whom we co-operate in the security field.

[Several hon. Members]

rose—

[Mr Clarke]

In order to avoid losing the thread—as far as there is one—of the Opposition’s amendment, I will make some progress.

Amendment 38 would allow the court to order the disclosure of sensitive material, notwithstanding the damage that would be caused to national security, even if the CMP would have been fair without the disclosure. That would make the Bill completely ineffective from the point of view of the main policy, on which we are all agreed, and would give the courts the sort of power that prompted our allies’ concerns following the Binyam Mohamed case. It would seem to allow the judge to look at some material, determine that it was national security-sensitive but then say that there were wider considerations and disclose it anyway. Of course, if such a disclosure was ordered, the Government would have to withdraw from the case and seek to avoid further disclosure in claims for damages.

[Several hon. Members]

rose—

[Mr Clarke]

I must conclude. I apologise to those distinguished Members to whom I have not given way.

I remind Members of the extraordinarily important objectives that we have for the Bill and which the Government’s amendments support. I do not think that the Opposition wish to destroy the policy of the Bill, but they have tabled amendments that would have that effect. The Bill will ensure that the increasing number of civil claims brought against the Government alleging British involvement in kidnap and torture are for the first time fully examined by the courts and that the agencies are better held to account for their actions both by Parliament, through the Intelligence and Security Committee, and in the courts.

The Bill will enable us to reassure the Heads of State of our closest intelligence-sharing partners that we will keep their secrets. The fact that we cannot do this at the moment has already led to the US putting measures in place restricting intelligence exchange and has seriously undermined confidence among our key allies. As I have already mentioned, the Bill will also stop us having to make unnecessary payouts to people who have not proved their case and reduce the risk of British taxpayers’ money being used to finance terrorism.

We have revised the Bill as far as we can. We all agree on the rule of law and with the principles of justice in this country, but I invite the House to apply a modicum of common sense and a sense of national security to its considerations. We have debated this endlessly. Never can a Government have been quite so responsive to the points put to them, and I fear that I must resist the further pressure.

[Dr Hywel Francis (Aberavon) (Lab)]

It is a pleasure, and it is certainly a challenge, to follow the Minister without Portfolio.

On Second Reading, I welcomed the improvements that had been made by the House of Lords, but expressed the view that more significant improvements were required. I hoped that the Bill would be amended in Committee to make it compatible with the basic requirements of the rule of law, fairness and open justice, which, of course, the whole House would wish to endorse. Regrettably, however, the amendments made by the Government in Committee have removed or watered down many of the improvements made in the other place.

In an earlier report on the Bill, the Joint Committee on Human Rights, which I have the honour of chairing, considered carefully whether the Government’s amendments gave effect to its recommendations. In its second report, published last week, it reached the clear conclusion that they did not, and recommended further amendments. The day after we agreed our report, the Government tabled further amendments. I think—I choose my words carefully—that that was regrettable. We would have liked to scrutinise those amendments properly. The Minister, however, told the Daily Mail that the Government had now met every sensible legal objection that there could be to the Bill. I welcome some of the latest Government amendments, as does my Committee, but I must add that they meet only one of the seven main concerns expressed by the Committee in the report published last week.

Let me deal first with equality of arms in the ability to apply for a CMP. We welcome and support the Government’s amendment, which is the only one that gives effect to a recommendation in last week’s report. If we are to have CMPs in civil proceedings, it is vital for individuals such as torture victims who are bringing cases against the Government to have the same opportunity as the Government to apply for them, but how does the Minister propose to ensure that such claimants are aware that a CMP might help their case? Can he reassure us that special advocates will be appointed whenever the Government apply for sensitive national security material to be excluded from a case on grounds of public interest immunity, and also that those advocates will be able to communicate to excluded parties the fact that a CMP might help their case? I think that those are both very important questions.

Let me now deal with judicial balancing at the “gateway”—the so-called Wiley balance, which has already been discussed a great deal today. I support the amendment proposed by the shadow Justice Secretary, my right hon. Friend the Member for Tooting (Sadiq Khan). In fact, I shall be supporting quite a few of his amendments, not because of any party loyalty but because he is supporting my Committee’s recommendations.

The Government’s amendments removed from the Bill the Wiley balance between the degree of harm to national security on the one hand and the public interest in the fair and open administration of justice on the other. That important safeguard had been inserted by the House of Lords, following a recommendation from my Committee. As the Committee explained in its report, the purpose of our recommended amendment inserting the Wiley balance was to ensure that the court considered the public interest in the fair and open administration of justice.

[Dr Francis]

I welcome the hon. Gentleman’s point. These are very important issues, and the Committee was cognisant of them.

To return to the point I was making, that purpose is not served if the Bill does not contain any express requirement that the court conduct such a balancing exercise before deciding whether to allow a CMP to be used. By deleting the Government’s new condition that it is in the interests of the fair and effective administration of justice in the proceedings to make a declaration and reinstating the Wiley balance as a precondition for a CMP, the amendment would restore a crucial safeguard for open justice.

On last resort, I support the amendment tabled by the shadow Secretary of State for Justice, which would give effect to my Committee’s recommendation. The Committee, in its report last week, explained why it does not accept the Government’s reasons for removing the “last resort” amendments made by the House of Lords, which are based on a misunderstanding of the effect of the provisions. The Government’s commitment to ensuring that CMPs are available only in those cases where they are necessary is most welcome. However, in order to give effect to that intention the Bill must be amended so as to reinstate the condition that the court is satisfied that a fair determination of the issues in the proceedings is not possible by any other means.

The requirement that the court consider whether a claim for PII could have been made must also be reinstated. The Government’s latest amendment, which requires the court to consider whether the party applying for a CMP considered applying for PII, does not go far enough, because it does not require the court itself to consider whether PII is a suitable alternative to a CMP.

[Mr Kenneth Clarke]

As I have already argued, that sounds as though it is demanding that both the Secretary of State and the court go through the full process of PII before even getting on to applying for a CMP. From what the hon. Gentleman is saying, it sounds as though that is exactly what the Committee is contemplating, but how can that be justifiable when all the people concerned in some of these cases will rapidly come to the conclusion that they are wasting time, money and effort on a totally unnecessary exercise and it would obviously be more sensible to go into a CMP and consider the nature of the evidence?

[Dr Francis]

I am sure that—

--- Later in debate ---

[Hazel Blears]

The hon. Gentleman, as ever, speaks with passion on these issues and I respect his point of view. I was a lawyer a long time ago and I understand how important it is to have open justice, but it is also important to get the balance right.

Amendment 30 is about the Wiley balance. I have some difficulty with the amendment because I feel that the Wiley balance is perfectly appropriate for PII, because it is used to decide whether to include or exclude material and whether or not there should be an open hearing. It strikes me that in relation to closed material proceedings there is a more complex and nuanced decision to make which contains different factors. I am keen that we get a balance and that we get the balance right, but I am convinced that the Wiley balance is one that we can simply transpose into the new legislation and that it will be effective.

Amendments 34 and 37 are about whether every other method has to be exhausted before we can get to a closed material proceeding. I am disappointed that there is not more agreement across the House on this. We all want to see whether cases can be dealt with in another way, because closed material proceedings should be the absolute minimum—an irreducible core, as I put it, of cases. I wonder whether the determination could be made by the Secretary of State, having considered whether PII would be suitable, and whether there could be some mechanism for the court to exercise a scrutiny function on whether the Secretary of State’s consideration had been more than cursory.

There will be concerns if the Secretary of State just ticks a box and says, “I’ve considered PII, in my bath”—as the hon. Member for Chichester said—rather than going through a proper process. I would like to see, whether or not we end up in ping-pong with the Lords, something in the Bill that says that the court has to take a proper look at the Secretary of State’s consideration of PII. That would not be exhaustive, but would have some substance to it. I ask the Minister to consider taking that into account.

[Mr Kenneth Clarke]

The judge will have to be satisfied that the Secretary of State has considered the matter. He will not take that as just having thought about it in the bath; that is not how the judge will test whether the Secretary of State has seriously considered it. The judge has such a wide discretion that he could decide that in the fair and effective administration of justice, for some peculiar reason the case should be PII; he should not be listening to a CMP application. That would be one reason for using his discretion. Having listened to the two principal advocates of these further tests, I think they are advocating that the court and the Secretary of State should go through the whole process of PII first. That is not what the Opposition intend, but that is what their amendments would do. The Government have met the right hon. Lady’s case perfectly satisfactorily in the Bill.

[Hazel Blears]

I hear what the right hon. and learned Gentleman says. He has been very inventive and creative in trying to table amendments, and it would not be beyond him to put something in the Bill that reassured people that there was a proper check on whether the Secretary of State had properly considered whether other methods could be used. I leave him to reflect on that.

Amendment 70 seeks to add inquests to the Bill. It originates from my right hon. Friend the Member for Wythenshawe and Sale East (Paul Goggins) and he will speak to it with his depth of knowledge, experience and appreciation of the issue, and I simply say that I will support him on it 100%.

It is important in a justice system for people to have sufficient notification of the circumstance to be able to give instructions, but at the moment the bar is set a little high, because there may well be circumstances in which the gisting goes right to the heart of national security. Therefore, by giving a gist that is wide enough to enable instructions to be given, the national security case is given away. Again I wonder whether something could be included about there being a presumption in favour of gisting that could be subject to rebuttal in circumstances that merited it. I would feel more reassured if there were something along those lines. The process adopted so far has been an attempt to try to get some agreement and consensus on these issues. It is difficult to do so, but the issues at stake are so important, both for our national security and for the integrity of our justice system, that we need to keep trying to see whether, on a couple of those issues, even at this stage, there is room for a little more movement to get us to a better place.

--- Later in debate ---

[Mr Davis]

The hon. Lady is of course right, but let me come to the point that I was driving towards, which is that none of the systems that we are talking about is perfect. PII clearly has weaknesses. Everyone who has spoken has said something to that effect, and the hon. Lady was particularly correct about that; there are weaknesses to PII. We should not accept that that is the perfect outcome either.

[Mr Kenneth Clarke]

My right hon. Friend rightly says that in PII, because people do not like excluding all the evidence, there is a perfectly legitimate argument about how much we can gist and how much can be redacted, and then it can be put into the open court. But everything that does not get there is entirely left out; it is not available to claimant, judge, lawyers or anybody else. In a CMP, exactly the same thing can be done, because the judge will be required to consider how much we can gist, how much we can redact, and what can be shared with the defendant. The only difference is that in a CMP, the evidence, including, as my right hon. Friend said, some things that might be absolutely key to the case that cannot unfortunately be disclosed, can be considered by the judge. PII shuts out all that which is not possible to gist. With a CMP, there can be all the gisting and redaction that one wants, but all the evidence is considered.

[Sir Malcolm Rifkind]

rose—

--- Later in debate ---

[Dr Huppert]

None of us wants to see Ministers’ time sucked up for a year reading documents and signing them. That would not be in anybody’s interests.

Why do we believe in the concept of last resort? The Government have an advantage in these cases because they know what the evidence is and the other party does not. That is why we want more balanced processes to be tried first. That changes slightly if the other party has applied for the CMP. To take the case that I advanced earlier of an ex-employee who knows of a document, we should probably say that a CMP would be the preferred option for them, rather than allowing the Government to keep something away. We want a slight bias away from the Government—not a huge bias, but a slight one—to make up for their advantage of being able to see all the documents.

[Mr Kenneth Clarke]

On the hon. Gentleman’s point about the last resort, I am grateful that both the Labour party spokesman and the Liberals who have spoken so far have agreed with what we have said. We do not want a statutory provision that requires people to go through immense procedures to eliminate every other way of dealing with a case. Unfortunately, there are later Opposition amendments that would have that effect. It is very late in the day. In conversational terms, we are all agreed that closed proceedings are a last resort. We want closed proceedings only when national safety is in danger and where there is no other sensible way of trying the case. I will go away and consider the matter, but we are rather late in the proceedings. Of course, the rules of the court still have to be made and it may be possible to address the matter there. In practice, there is not much between us, because judges and lawyers will not want to go into closed proceedings other than as a last resort. What we do not want is to introduce a process that involves months of time and vast sums of money, the intention of which is really to stop anybody taking on a closed procedure at all.

[Dr Huppert]

I thank the Minister for saying that he will look more carefully at the matter. However late in the day it is, we would be grateful for any changes he could make that might take us in the direction of what has been suggested by the JCHR and others.

While the Minister is in the mood for looking at other issues, can he be absolutely clear about confidentiality rings? This matter was raised earlier, so I will not go into it. As was discussed in Committee, there is a change in the wording that has led to the impression that the test is about the material rather than the disclosure. I hope that it will be made very clear that there is no sense in which that would apply to confidentiality rings. I believe that Opposition amendment 28 is intended to explore that issue.

I look forward to supporting any of the amendments that would take us towards the proposals of the JCHR. I look forward to amendment 1 being debated and for any opportunity to test the will of the House on that issue.

I was surprised to see amendment 70 and I look forward to the explanation from the right hon. Members for Wythenshawe and Sale East (Paul Goggins) and for Salford and Eccles (Hazel Blears). I am pleased that, owing to the influence of the Liberal Democrats, inquests were taken out of scope after being included in the original proposals. It is important, particularly at an inquest, that the family knows the grounds for the conclusion. It would be very unsatisfactory for people who had lost a loved one to be told, “We cannot tell you why it happened.” I am pleased that inquests are not included. I am surprised that there is a move to put them back in. I had hoped to ask the shadow Secretary of State whether he supported that move, but I suspect that I can guess the answer.

Amendments 39 and 40 relate to gisting. My hon. Friend the Member for Edinburgh West (Mike Crockart) and I tabled similar proposals in Committee. I find it hard to see why there would be many cases in which a judge would not want a gist to be made available. We want that to happen. I understand that there may be cases in extremis where no gist would be possible. It would be helpful if the Minister made it clear that it is the intention that judges should always gist to the maximum extent possible. As long as that is said in this place, I think that we will be able to make progress.

--- Later in debate ---

[Dr Huppert]

I think that it is the same as the right hon. Gentleman’s alternative would be in a criminal case for which the evidence needed to convict somebody could not be gathered. If one cannot gain that evidence, one cannot proceed. It is important that that applies when people are being deprived of their liberty. I made the same argument when we were getting rid of control orders. One must try to provide the evidence that is needed to convict people. Failing that, I do not like the idea that people are simply held for many years, with very little freedom. I believe that control orders had 23-hour curfews. That is an extreme infringement of liberty. I know that we are not discussing criminal issues principally, but there are many cases in the criminal system in which the police are sure that somebody is guilty, but they cannot find evidence that may be used in court. None of us would want to see such cases proceed and the same should apply to any other serious deprivation of liberty.

I look forward to the votes. It is not clear to me exactly which matters we will have the opportunity to vote on. I will stand by all the votes that I cast in Committee, where we came very close to changing the Bill, but never quite close enough. I think that we won one vote on a new clause being read a Second time, but the decision was reversed immediately afterwards by the Chairman’s casting vote. I hope that we will change the provisions either so that we do not have these proceedings, which would be my ideal, or we at least move them closer to the proposals of the JCHR. I accept that we should not keep every word of what the Joint Committee suggested and that tweaks could be made. I hope that the Minister will consider that at the point at which he confirms the position on habeas corpus and my other questions.

[Mr Kenneth Clarke]

I may have misheard, but the hon. Gentleman is not rejecting closed material proceedings altogether, is he? He would be the first person in the debate who has gone that far if that is what he is saying. He suggests that he might vote against clause 6. Two Members from smaller parties have tabled an amendment that would delete that clause. That would take us right back to square one after we have spent the last three hours agreeing that there are cases in which national security requires there to be closed proceedings.

[Dr Huppert]

I am sure that the Minister will be aware that I and my hon. Friend the Member for Edinburgh West did press for a vote in Committee to remove clause 6. Sadly, it was defeated.

I look forward to hearing the Minister’s responses on habeas corpus and the other points that I have made because what he says may well affect what happens, and liberty is a very important principle.

--- Later in debate ---

[Paul Goggins]

My hon. Friend knows me well enough to know that I do not dismiss critics of the Bill. I listen to them carefully; I just happen to disagree with them. The same applies to my hon. Friend: I listen carefully to what he says on this issue. Sometimes we agree and sometimes we disagree, and I sense that we will disagree on this. I am making a plea for further attempts to achieve consensus, but I am making it clear that if there is no consensus then I think that my right hon. Friend the Member for Tooting is setting the bar too high.

On inquests, I am sorry that the Minister did not take an intervention from me earlier. I would be delighted to take an intervention from him at any stage in the next couple of minutes. I am grateful to Members who supported my amendment 70, which would make closed material proceedings available for inquests as well as civil proceedings. We just need an explanation from the Minister on why the Bill proposes CMPs for civil cases, but does not propose them for inquests. That was in the original plan. He knows that senior members of the Government and senior judges think it is nonsense and inconsistent to have one and not the other.

[Mr Kenneth Clarke]

I think we have had this exchange before. The explanation is simple. The Government were faced, in Parliament and from all the lobbies, with overwhelming opposition to extending CMPs to inquests. We have said throughout today’s proceedings that we have been trying to concede as far as possible, and that if people did not want to trust coroners with these powers and the ability to take into account this information, we decided it was impossible to maintain it, particularly after recent controversy regarding coroners and inquests. All kinds of unlikely organisations were seen to be believing that we were closing down inquests, getting rid of juries and so on, so I am afraid that we took the line of least resistance. The result is that total secrecy and silence will continue to be the case in inquests whenever national security is involved.

[Paul Goggins]

The purpose of tabling amendment 70 —again, I am grateful for the support of hon. Members—was not that I thought I would win the day. Clearly, the Minister is not going to support it. I tabled the amendment to encourage him, the Under-Secretary of State for the Home Department, the hon. Member for Old Bexley and Sidcup (James Brokenshire) who is sitting next to him and anybody else who is listening. This issue will come back and either his Government or preferably a Government that I support, will have to deal with it.

--- Later in debate ---

[Paul Goggins]

My right hon. Friend is absolutely right. If CMPs are to be available in civil proceedings, they should certainly be available in inquests. There are difficulties concerning families and bereaved relatives, but in the end this about a search for the truth. If there is information and intelligence that reveals the cause of a death, the coroner should know it, even if it has to be kept as secret intelligence.

The Minister himself made the perfect argument today. He went on the radio at lunchtime and made the argument about the limitations of having to have just PII, rather than CMPs. What was the example he gave? The Litvinenko inquest. There are more than 30 historic inquests in Northern Ireland waiting to be resolved. Whether the deaths involved the Army or the police, all of those issues will be there. There will other inquests in future that will bring national security issues into play.

[Mr Kenneth Clarke]

The right hon. Gentleman has been very patient in listening to the whole debate. All the people who are more liberal than we are and who are denouncing CMPs, are defending the existing law. What is at the moment in controversy at the Litvinenko inquest is that what they are saying is superior to admitting the evidence and having it heard and determined by the judge. One has to bring in the present inquests or inquests will never have this material, because such a fantastic volume of opposition was excited by the proposal when we first put it forward.

[Paul Goggins]

I accept that the Minister felt under enormous pressure to make that concession. Anybody who doubts the minds of coroners and senior judges in relation to the test that will be applied need only look at the coroner in the Litvinenko inquest, Sir Robert Owen, and the comments he made last week. He said clearly:

“I intend to conduct this inquest with the greatest degree of openness and transparency”—

and that he would give the Foreign Secretary’s request for a PII certificate—

“the most stringent and critical examination”.

We ought to trust the coroner and the judges.

In the end, the search for justice is a search for the truth. A secret court is one where information and intelligence is either not considered at all, or where the Government and their agencies cave in and make a settlement where no case has been heard—that is secret justice. Closed material proceedings are not perfection, but we are not dealing with perfection; we are dealing with a difficult issue in a small number of cases. However, we are more likely to get closer to the truth if the judge has seen the relevant information than if nobody has seen it at all.

--- Later in debate ---

[Mr Kenneth Clarke]

With the leave of the House, I will respond on behalf of the Government. I will briefly address the comments of those Members who have, with great passion and sincerity, opposed the whole policy of the Bill; who think that closed procedures should not be permitted and are simply incompatible with our standards of justice; and who plainly wish things to stay as they are. They include the hon. Members for Brighton, Pavilion (Caroline Lucas) and for Hayes and Harlington (John McDonnell), and even the hon. Member for Cambridge (Dr Huppert) got very near to that at one point, rather to my alarm.

I share the exasperation expressed by many Members who are more supportive of the Bill that much of the opposition to it is based on the idea that the present law does not call for amendment and that what happens now is satisfactory. Three or four Members expressed the exasperation I sometimes feel in these debates, because a growing number of people who seem to be more liberal than me, at least on this point, think that PII certificates are the ideal way of handling these cases. Most of the people who have tried to argue that point with me outside the Chamber, I am quite sure, would not have defended the PII certificate system 12 months ago and instead would have attacked it.

As we—the Bill’s defenders—have repeatedly pointed out, the whole point of PII is to exclude from anybody’s use in a case the evidence that is sensitive. Of course, one can gist and redact such as one can, but what one leaves out is anything that obviously threatens national security, which is the very information that everyone says ought to be heard. I do not accept all those allegations. I would like the civil courts to be able to decide some more of those allegations. To those who, like the hon. Member for Brighton, Pavilion, are convinced that our security services have been torturing and mistreating people and that we are trying to suppress all kinds of outrageous allegations, I can only say that if we stay with the law as it is, none of that will ever appear in a court before a judge.

The problem at the moment is that where a Government wish to bring forward their records and witnesses to try to answer these claims, there is no closed material procedure in civil proceedings to enable them to do so. We used to think that the court did that out of its own volition, but I am afraid that there have been rulings making it quite clear that that is for Parliament to decide. I will not repeat what people said a few moments ago. The absolutism of the people on the ultra-liberal wing is quite extraordinary. They are demanding silence. They are demanding no judgment from a judge. They wish things to stay as they are. I ask them to reflect on the deeply unsatisfactory nature of that. It is not true that there are other countries where one can do that.

I do not think—I am open to correction—that there is any jurisdiction in the world in which someone is trying to create a procedure whereby one can bring in highly sensitive evidence of this kind in a civil claim against the Government. Somebody calmly said that the Americans allow that. I can assure them that the Americans are extremely alarmed about the fact that we are giving those powers to our judges and wish to be reassured that national security will be protected. As has been said, they are already reducing their co-operation with us, and they will reduce it further if they think that we are opening some kind of sieve in their information. Where they issue a certificate of state security it is not challengeable. People are bringing actions in our courts claiming that we are sometimes complicit with what they say American agencies have done because they cannot bring those actions in America. They come here under Norwich Pharmacal trying to get documents from us to support action in other countries because they think we have the only courts in the world where they might be able to get hold of American intelligence material—and to do so for other people. So in supporting our approach in principle, the Government, the Labour party and the Liberal Democrats are demonstrating how committed we all are to the rule of law, human rights and the wish to be accountable to our courts. We think that we can contrive a process that does secure national security and does respect the interests of our allies while allowing a judge to consider all the relevant evidence and give a judgment.

My next point will be the final one I make on this, because I realise that the right hon. Member for Tooting (Sadiq Khan) has to wind up the debate. I still hope that we get the widest possible all-party support on this important constitutional matter, and I think that the Liberals are with us. Nobody in this House has given views that are contrary to the interests of justice or anything of that kind, but we are almost quibbling about rather important amendments; we are talking about how we can best frame our response to the Joint Committee on Human Rights and so on without actually compromising the process and making it unworkable.

I had the formidable support of the Ministers in the former Government who were responsible for these matters at various times and in various ways: the right hon. Members for Blackburn (Mr Straw), for Salford and Eccles (Hazel Blears), for Wythenshawe and Sale East (Paul Goggins) and for Knowsley (Mr Howarth). I think that the latter was right in saying that I am probably the most liberal of the five of us on most issues that come before this House. I spent my time opposing the right hon. Members when I was in opposition and they still have not persuaded me that 90 days’ detention without charge was remotely justifiable—we sat up all night arguing about that. The fact is that we are moving to resolve a serious problem, and the Labour party should give careful consideration to whether they press these measures.

I am asked by Labour Members and by others whether there is any further that we can go. I have already described the number of amendments that we have made, and the huge discretion and control that we have now given to the judge. I have indicated that we will have a look at the rules of court. I cannot be persuaded that putting “as a last resort” in the Bill is not risky. The Wiley balancing test as it is on the amendment paper is not the Wiley balancing test but a stronger version of that test, and it has been argued about interminably. It is totally unsuitable for a closed proceeding; it is designed as a stiff test when one is proposing to take all the evidence out of consideration altogether.

I urge restraint on the Opposition, who claim to wish to be in government one day—needless to say, I regard that proposition with dread. If they take some of these objections to bizarre lengths when there is complete agreement on principle between us, I can say only that were they to succeed, they would regret it. I also think that, for the reputation of our security services, for the reputation of our justice system and for the confidence of our allies, it would be very helpful if we had the support of the bulk of the three major parties. I have tried to explain why people of utmost sincerity who take the more purist view are actually living in a dream world. We will do better in holding our agents to account by having this Bill.

[Sadiq Khan]

With the leave of the House, Mr Deputy Speaker, may I repeat what I said almost four hours ago by citing the words of the independent reviewer of terrorism legislation? As I said, the Opposition accept that there is

“a small but indeterminate category of national security-related claims, both for judicial review of executive decisions and for civil damages, in respect of which it is preferable that the option of a CMP—for all its inadequacies—should exist.”

That is our position and we are not seeking to exclude part 2 from the Bill—to be fair to the Minister, he did not suggest that we were.

I just remind the Minister that when the Green Paper was published, many on both sides of the House thought that it was perfectly adequate. When the draft Bill was first published, some on both sides of the House thought that it was adequate. We did not think that, and we pushed for improvements. When the Bill was published, before it went to the House of Lords last June, many on both sides of the House, including the Minister, thought that it was perfect and in need of no amendment. The Bill has been changed on three or four occasions in a number of areas, not least by the changes made in the House of Lords. The other place sought to put into the Bill some of the recommendations made by the Joint Committee on Human Rights. Not all of its recommendations were put into amendments standing in the names of Cross Benchers, including Lord Pannick, but some were—the ones thought to be important in order to secure the checks and balances required in this Bill.

I remind the Minister that Labour Front Benchers have on no occasion sought to remove part 2 from the Bill. He will know, as he has been in this game far, far longer than I have, that we could well have won votes in the House of Lords to remove part 2, but we appreciate the important challenge the Government face. As the Chair of the Intelligence and Security Committee and colleagues on both sides of the House have put it, “How do we get the balance with our wish to make sure that our citizens are as safe as possible, bearing in mind the huge heroic work that our security services do, relying on intelligence from other countries?” The Opposition accept the control principle and always have done, and we will debate that after the votes at 8 pm. Nobody who has spoken today in favour of our amendments has tried to caricature the people against them as not being concerned about civil liberties and human rights. To be fair, those against our amendments have not tried to caricature our position as being against, or not understanding the importance of, national security.

The hon. Member for Cambridge (Dr Huppert), who represented the Liberal Democrats in Committee, made a speech today, and I think he indicated that he will be supporting our amendments at 8 pm. I pray in aid the fact that it is not just Opposition Members wishing to press these amendments, as I will shortly. The Joint Committee on Human Rights, in its most recent report last week, confirmed that it was unhappy with the shredding of the Lords amendments in Committee. The special advocates also agree with our amendments, as does the House of Lords. The independent reviewer of terrorism legislation and the former Director of Public Prosecutions also believe that our amendments strike the right balance between national security and ensuring that individuals are able to hold the Executive to account.

During the debate, my view—the Opposition’s view—has been characterised as considering PII perfect and a utopian panacea for some of the challenges we face, but I have not said that. I deliberately took some time to pray in aid the Supreme Court decision in al-Rawi, when the court said, to paraphrase, that it would like the additional tool of CMPs and suggested that it would like Parliament to give it that ability. That is what I am seeking to do.

I say to the Minister without Portfolio that the danger lies is some of the comments made by others, who gave the impression that CMPs are often preferable to PIIs and that rather than being the exception—a point made by a number of colleagues on the Government Benches—they would become the default position. That is where he must be careful. A number of Members on both sides of the House have said that PII is rubbish, that it is not the answer and that CMPs are far preferable, and they have asked why a judge would not opt for a CMP. We are simply seeking to put in the Bill the amendments passed by huge majorities in the House of Lords on the recommendation of the JCHR to ensure that a judge understands that he must consider the other options before he decides to go for a CMP.

I know that the Minister without Portfolio did not mean it when he said that every time he makes a concession, ingenious lawyers move fresh amendments; our fresh amendment would have become stale by now, as it is four months old. I would like to press to a vote amendment 26, which is a paving amendment for amendment 31 to make CMPs a last resort, and amendment 30, which is the gateway for the Wiley balancing test for maximum judicial discretion.

Question put, That the amendment be made.

The House proceeded to a Division.

Cabinet Office

Lord Clarke of Nottingham Excerpts

Tuesday 8th January 2013 Ministerial Corrections

[Official Report, 18 December 2012, Vol. 555, c. 726-7.]

[Mr Clarke]

… Sir Daniel Bethlehem, a former legal adviser to the Foreign Office, told the Joint Committee on Human Rights that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.

Letter of correction from Kenneth Clarke:

An error has been identified in the answer given to the right hon. Member for Welwyn Hatfield (Grant Shapps).

The correct answer should have been:

[Mr Clarke]

… Lord Butler of Brockwell, a member of the Intelligence and Security Committee, told the House of Lords that the flow of intelligence from the United States was being limited. He said that he did not want to exaggerate, but the point was that the trust of the United States had been weakened and that trust needed to be restored.