David Davis
MP for Goole and Pocklington · Conservative · United Kingdom
“On a point of order, Madam Deputy Speaker. May I start by congratulating my right hon. Friend the Member for New Forest West (Sir Desmond Swayne) on putting a Bill in front of the House that has support from literally everybody in the Chamber?”
“The Post Office Horizon scandal highlighted the institutional instinct to find a convenient scapegoat. Innocent people paid the price, while the institution sought to protect itself. If the Thirlwall inquiry asks too narrow a set of questions, systemic NHS failures will go unexamined.”
“Last month’s sentencing of Nicola Sturgeon’s husband exposed the real reasons behind the Scottish Government’s persecution of Alex Salmond. From 2010 to 2022, Peter Murrell abused his position to embezzle almost £500,000 from the SNP to buy luxury items. He used SNP money to buy a £33,000 Volkswagen Golf.”
“The consultants also reported that in the two months since the change infants have been sick but recovered as expected.” The report highlighted deficiencies in staffing levels, leadership and communication, but, in the trial, it was not shown to the jury—they knew nothing of it.”
“One of the nurses let go later described it as “the decimation of the Nursing and Midwifery service”, adding that “eight registered nurses...were replaced with nursery nurses...unqualified staff are replacing qualified staff”.”
“There was little space, cots and incubators were stored in corridors, and mothers struggled to find somewhere to breastfeed their babies. Susan Gilby, the hospital’s chief executive between 2018 and 2022, later described the unit as “dark, dingy and cramped”, providing a “less than ideal” environment to work in.”
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“No. To finish my point, if that had been the case, we might well have had the inquiry report already and there would be less public concern about an establishment cover-up. We also know that the Maxwellisation process is causing some delay. Those due to be criticised in the final report are being allowed lengthy legal consultation. Although this is a necessary part of the process, strict time controls are needed. It cannot be right that those who are to be criticised can delay publication for their own benefit. Finally, let me deal with the question of preventing publication during the run-up to the general election. Purdah periods exist for a simple reason: to prevent Governments from using their power to publish information that would give them electoral advantage.”
“My hon. Friend will have noted that I deliberately avoided the Crimea, Dardanelles and other examples. The example I did cite was the Israeli Winograd inquiry, which was equally controversial and very sensitive. That inquiry was brought out, during the tenure of the Prime Minister involved, within seven and 17 months. Surely that is possible?”
“The reason is simple—the Iraq war was a disaster, and we need to understand why, simply so that we can make sure it never, ever happens again. To that end, I ask the House to support the motion. Question put and agreed to. Resolved, That this House regrets that the Iraq Inquiry has decided to defer publication of its report until after 7 May 2015; and calls on the Inquiry to publish a timetable for publication and an explanation of the causes of the delay by 12 February 2015.”
“This has been an excellent debate, with cogent and well informed arguments delivered with both passion and forensic skill. There have been divisions between Members, of course, but virtually everybody in the House agrees that six years is too long and that the report should have been published some time ago. Although some think it is too late to hold people to account for what happened, it is not too late to learn. I believe that everybody agrees we should get this thing published as soon as possible. Next week, the Foreign Affairs Committee will meet Sir John, I think largely as a result of this debate being called, and will ask him for the reasons for the delays and for a timetable. I hope that he will be able to provide that. Part of the aim is to put pressure on him for a very fast delivery of the report.”
“I speak from memory, so forgive me if I do not have this exactly right. My understanding was that my right hon. Friend wanted effectively to strike out judicial reviews that were almost procedural, in which the outcome would have been the same whether the organisation had obeyed the rules or not. Could he see procedural issues being an exceptional public interest? I think that they are an important public interest: that we make our agencies and our Governments obey the law. It is after all the point of judicial review.”
“In my view, reform is necessary to bring about, ideally, judicial decision rather than judicial oversight. I would prefer this power to be one for the courts full stop—with all the proper appeal procedures that go with it. Judicial review is not good enough: it is too restrictive, too procedural and insufficiently material. My preference is for a judicial decision, but in its absence, for a close and unfettered judicial oversight. I say to my honourable and old friend the Minister that I hope he will be able to put the conscience of the House at rest today with his proposals. If not, I fear I shall have to support the Opposition in a number of their amendments and new clauses in the group.”
“One is the increasing power of the Executive, which is a bad thing in itself, and the second is an increase in the likelihood of a miscarriage of justice. I do not have a particular objection to a “managed return” approach to some of the individuals currently abroad committing crimes in other states. I do not subscribe to the “stateless person” concern, particularly when people have deliberately rejected their own allegiance to the state. I think there is a reasonable argument to be had on that, but I am concerned that this power will be effectively unfettered, which is what the Bill says at the moment, in the hands of the Home Secretary. In common with my hon. and learned Friend the Member for Harborough and indeed others who have spoken, I shall listen very closely to what the Minister has to say.”
“I associate myself almost entirely with the assessment of the Bill by my hon. and learned Friend the Member for Harborough (Sir Edward Garnier). Over the past several decades, any number of counter-terrorism Bills have been put before the House. Some have been justified; some have not. Some have been effective; some have not. Some have, in the words of the hon. Member for Foyle (Mark Durkan), fought terrorism, while some have fed terrorism. This Bill is a complex mix of measures, most of which I suspect are necessary, but it shares one characteristic with every single other counter-terrorism Bill I have seen here before: it brings more unfettered power to the Executive. With that go two problems.”
“It is necessary to protect public security while avoiding miscarriages of justice. Does my hon. Friend accept that, in a number of cases, the clear finding of the Special Immigration Appeals Commission—the court, a secret court, that will probably consider these matters—has been that the Home Secretary of the day has made a mistake, sometimes on the basis of fallacious evidence and sometimes on the basis of straightforwardly bogus evidence presented by the intelligence agencies? The protection against that, surely, is a court, even if it has to be a secret court.”
“Although I understand what my hon. Friend is saying, I rather agree with the hon. Member for Perth and North Perthshire (Pete Wishart) that we are sometimes very unwise in our choice of words. When we choose words such as “war on terror”, we give the other side the standing of soldiers when often we are dealing with criminal misfits. Should we not be more careful about our language?”
“I guess that the precursor of the proposal is the organ with exactly the same name in the United States, which was activated only after the Snowden events, when information was not just put in the public domain but became controversial and raised issues in Washington. The danger is that the body becomes toothless, does not have investigatory powers and cannot pre-empt a future Snowden. It seems to me that the most important aspect of that is the investigatory powers, not the rest.”
“They manage to square that circle, but we do not appear to be able to do so at present.”
“I shall come on to the few exceptions in a moment. Why is that the case? It is difficult to know. GCHQ and its predecessor has always resisted putting any intercept evidence into the public domain. Frankly, this has probably been the case since the invention of the telephone. In the early days, I suspect it happened because gentlemen thought it ungentlemanly to listen in on other people’s conversations. Today, however, the argument advanced by the agencies concerns the protection of technique and capacity. Their attitude is very different from that of every other agency of its sort in the world. All our allies in the “five eyes” countries and beyond are equally concerned about protecting capability, but they also give high priority to the prosecution and conviction of terrorists and those who commit serious crimes.”
“I shall speak to new clause 3, tabled in my name. It is entitled “Intercept Evidence—use in legal proceedings”. It is a probing amendment and I do not propose to press it to the vote on this occasion. If I had wanted to press it, I would have included in the new clause the relevant legal machinery required, which is complex but not difficult to achieve if I wanted to do so. My aim is to provoke some sort of non-partisan debate on what is the cornerstone of counter-terrorism strategy—the legal treatment of intercept evidence. If need be, depending on what the Minister says and what the Government do in the meantime, I shall come back to the issue on Report. The United Kingdom is unique among major western powers—common law powers and European Union countries—in not allowing the use of intercept evidence in court.”
“Of course, it is not easy and there is an issue of presentation, but if there is fair representation from both sides to decide on what information should be put in the public domain, it is as close as we can get to public justice. That is the point.”
“A special advocate called Nichol, who is now a judge, discovered that MI5 was claiming that one person against whom it was bringing a case had used a passport to cross a border one week, and then the next week had brought a case against somebody else claiming that he used the same passport on the same day in a different place. So the agencies have their weaknesses. Nevertheless, the tool is significantly better than what we have at the moment. We may use intercept evidence in terrorism prevention and investigation measures and control orders. I happen to think that TPIMs and control orders are completely ludicrous, because they people who should be inside prison leave out on the streets. They should perhaps be called non-control orders, because all the dangerous ones disappear.”
“I speak as probably one of the last people to give evidence at a Diplock court. It was against a terrorist who was convicted and then, under the Good Friday agreement, promptly released—it was a very frustrating process. Of course there is a problem of acceptability with any secret court. The hon. Lady will know that I fight vigorously against the idea of secret justice, but what we are talking about here is not secret justice; it is about a decision to let into the public domain more than is currently let into the public domain. Sometimes that information is exculpatory. One of the problems that has arisen with SIAC is that the agencies have not been good at their evidence discipline. At least one case has been struck down.”
“The Minister for Security and Immigration will be familiar with the number of times on which he and I have had exchanges that amount to my asking him a question and his writing back something like, “I never comment on security matters.” That is not a particularly good form of accountability for any mechanism. My concern is that along with progressive secrecy, secret courts and all the other things we now have, the weak accountability—”
“At the time, it seemed quite reasonable for the Crown prerogative to be used as a method of giving warrants and of enacting the state’s will to protect the public. I took the 1994 Bill on the Secret Intelligence Service through the House. We did not foresee the level of use—the number of warrants used and the level of power being exercised—that is now necessary to deal with the Islamist terrorist threat. What is more, we did not give much thought to how such power might be abused—not that it is at the moment, but it might be in the future—or how many errors might occur, which does happen. We had at the back of our mind a model of accountability that, frankly, does not work.”
“Over time, I have become progressively concerned about the accretion of fairly absolute power to the state in counter-terrorism policy. Absolute power is pretty important. My hon. Friend the Member for Skipton and Ripon (Julian Smith) suggested that these measures did not impinge on people’s liberties in the same way as TPIMs might, but I am afraid that the impingement is pretty sizeable. I do not necessarily disapprove of it at all, but it should be exercised with a degree of judicial care. These accretions of power have come about since the late 1980s and the 1990s when we avowed the various security services that had up until then not been recognised in public policy, or that were at least not in the public domain.”
“I had not intended to speak today, but I have been sitting here getting rather more uncomfortable about some aspects of the proposal. I do not propose to go into the complex practical issues, which were well laid out by the right hon. Member for Holborn and St Pancras (Frank Dobson), who gave thoughtful input, as ever, and by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). They outlined the issues and complexities very well and I suspect that those complexities will best be addressed by negotiation between those on the two Front Benches, which is not something I often recommend. What concerns me today is the issue of the Home Secretary herself exercising the power. I am concerned that it comes about without prior judicial approval or, indeed, without being a power of the court, which would be my preference.”
“If my hon. Friend will permit me, I am coming to the end of my speech. The level of secrecy, the low level of accountability and the power accruing to the Government, which is enormous when we think about our historic liberties in this country—this is in no way a criticism of the Home Secretary, as I would say the same of any Home Secretary, any Foreign Secretary or any Secretary of State—are why I am attracted by new clause 11. I do not know whether it will be pressed to a vote tonight, or whether it will come back on Report, but I ask the Government closely to consider the TPIM model. It is very sensible and those on the Opposition Front Bench have made a good case for it.”
“The right hon. Gentleman is a thoughtful and long-standing expert in this area, and he is right to say that it will be a Special Immigration Appeals Commission style process. In the past, however, SIAC-style processes with control orders and TPIMs have prevented quite egregious errors—he will remember the case of MI5 presenting the same passport two weeks running against two different suspects, and that being caught and stopped by the SIAC. My concern is not just about the increase in power; it is also the error rate and the fact that someone can be denied serious rights without a proper review. The right hon. Gentleman is right that a SIAC-style process would be necessary. He knows I am not fond of that, but it is better than nothing.”
“Adebolajo and Adebowale are both in prison for life, which should provide permanent security to the British public—from them, at least. However, three weeks ago it was made clear in the Investigatory Powers Tribunal that the agencies have, at least since 2010, been breaking the absolute protection on privileged information between lawyers and suspects. If that happened during the course of a terrorism trial, we could find ourselves in a position where that has undermined or even fractured the conviction of proven terrorists, and we could end up having proven terrorists back on the streets. Have the Government considered that problem, and do they have any plans to deal with it?”
“From what the Secretary of State says, the responses of the farmer, the vet and the agencies were exemplary in both their swiftness and decisiveness. The suggestion that this outbreak has come from wild bird infection reminds us that east Yorkshire is part of a migratory network, as is much of the rest of the United Kingdom. What will she do to ensure that there is clear surveillance of areas subject to bird migration so that this cannot happen again?”
“On a point of order, Mr Speaker. You have said on a couple of occasions, in response to Members of this House, that you will not call the Home Secretary until later on because others wish to speak. Is there anything to prevent her from speaking before the end of the debate?”
“Further to that point of order, Mr Speaker. I quite accept that it is not normal procedure, but at the moment we are debating something we know not what. We do not know whether the Government are going to change the motion or stay with this motion. My stance on this matter is entirely different depending on which of those two outcomes it is. Therefore, it might be useful for the House to know rather earlier than usual.”
“and learned Friend the Member for Rushcliffe (Mr Clarke) and I have completely different views on how this should proceed: he believes that this measure is entirely necessary for the delivery of law and order, and I believe that it is pernicious to law and order. I take the view that the first duty of this House is ensuring justice for subjects of the British Crown. What it has done, in fact, is allow a number of people, including the constituent of my hon. Friend the Member for North Herefordshire (Bill Wiggin), to suffer a miscarriage of justice and then have it arbitrated on in what could be termed a parody of a justice system in courts outside the United Kingdom.”
“Perhaps it is entirely appropriate that I should follow a Member who has been disorderly, given the nature of the House all day—in many ways this is the most disorderly I have seen it in 20 years. However, in one respect he demonstrated a really important point: he gave us an example of what we should have been debating had this parliamentary gambit not been attempted. What we have seen today is a very clever parliamentary gambit by Labour Front Benchers, but it is acutely undemocratic. It has denied Back Benchers on both sides the opportunity to debate one of the most contentious issues to come before the House for some time. My right hon.”
“My hon. Friend’s constituent is entirely right. There are many cases of British citizens, such as Andrew Symeou, Deborah Dark and Colin Dines, being badly mistreated. It is not just British citizens, because the leading criminal lawyers in 11 other countries have complained about this procedure in previous years. It is a very serious issue. This House, above all others, should have been in a position to debate it at some length, rather than being faced with this awful choice between accepting the Government’s business untouched and forgoing the debate altogether in the fond hope of having it another day.”
“I have to say that I disagree with my hon. Friend—I very rarely do. I would have liked to have had a full-blooded debate with several motions on each component, or at least packages of components of this so-called package, but that was not available to us today, and there is no guarantee that we will get it if the Opposition’s motion succeeds.”
“What is so anti-democratic about the Opposition’s proposal is that it would deny many Members who had intended to speak today the opportunity to do so, and that is a tragedy, because this House’s first responsibility, as I have said, is the delivery of justice for our constituents. We will not have the opportunity to discuss the alternatives, such as having a multiple-negotiated outcome, rather than the European arrest warrant. We will not be able to talk about the other implications of Europol and Eurojust for the actions of the European Court and the ability of the Home Secretary to pass laws that protect us. All in all, I think that this is a very unfortunate outcome for Parliament today—a very clever parliamentary trick, but very poor democracy.”
“I am afraid that—I will explain why in a moment—I am not in the business of casting something on the waters and hoping that it comes back. If I hear from both Front Benches that they have agreed to meet all day tomorrow to go through this business again, I will change my view, but I will not take a chance with something quite so invidious as this. Let us remember what we are talking about: taking British citizens, with no prima facie evidence, and sending them off to courts elsewhere in Europe. What we have been asked to debate assumes that those courts all deliver equal justice. Romania does not deliver equal justice. Nor does Bulgaria, Greece or Italy. Some of them have post-Soviet justice systems to which we are sending our constituents.”
“I agree with my hon. Friend. He will hear some of us attempting to stay in order—desperately, Mr Speaker—while making those arguments, but he will be unable to vote explicitly on them; he will have to vote on whether we have a vote on another day or we close down the debate today. That is not the way Parliament is designed to work. I am afraid, therefore, that this is a travesty of democracy.”
“It is, of course, within their scope, and I was very tempted at the beginning of the exercise to suggest to the Home Secretary that she shoots the Opposition’s fox—that she says, “We’re going to have a day’s debate tomorrow. There you are. All over.” They would have looked stupid and we would have looked very democratic. Sadly, that did not happen. I will not vote for the proposal today. I may abstain, I may double-vote, but I am not going to vote for the proposal because I do not want us to leave uncovered an extremely important debate in the history of this House.”
“Have the Government approached you requesting to come to this House to explain precisely how this came about?”
“On a point of order, Madam Deputy Speaker. I apologise for interrupting the business of the House, but a story that amounts to a national scandal broke this morning in a public hearing of the Investigatory Powers Tribunal. It has long been taken as a standard in this country that the relationship between a lawyer and a client is protected by privilege, and that communications between them are protected from intervention by the state. What has become clear this morning is not only that that is not case at the moment, but that each of the three agencies has policies for handling legally protected material, and in one case for deliberately withholding that material, even from secret courts and security-cleared special advocates. My question to you, Madam Deputy Speaker, is how do we deal with that?”
“My hon. Friend will remember that when this proposal—an online process rather than a physical one—was put to 40,000 people online, including online campaigners such as members of 38 Degrees, the vast majority, well over 90%, said, “No, this is a bad idea”. The process should be serious, physical and involve a proper hurdle.”
“The fact that the hon. Gentleman proposes three different methods does not solve the flaw in the central method, which is that a Committee of the House will make a ruling. If the ruling is, in effect, a career capital punishment for a Member of Parliament, the decision should be judicial. I am sorry, but no lay Committee and no Committee of the House is equipped to make such a decision. It must be judicial.”
“This is meant to be helpful. In the several cases of misconduct in public office that I have had to deal with, the charge has been used because, really, there was nothing else that would catch the offence that had been created by the public official. I am sympathetic to the hon. Gentleman’s argument; the problem is that there is very little in the way of proper precedent that tells us what the offence really means. It seems to me that that is a very bad basis for any law at all.”
“Before he concludes, I would like the hon. Gentleman to address two issues that can be seen in the central turmoil of the debate. The first is the trigger of 100 people. That is not a large number to get together, raising the risk of continuous vexatious references. How would he overcome that problem? Secondly, when the outcome is a finding against the Member by the electoral court, is that a 10% test, as in the Government’s proposals, or a full referendum test as suggested in the proposals of my hon. Friend the Member for Richmond Park (Zac Goldsmith)?”
“I do not remember Lena Jeger, but I think I am right in saying that in each of her successive elections her majority increased despite her stance on abortion. I believe that the same was true of Ann Cryer, whom I remember well—and the hon. Gentleman is right to say that she was courageous.”
“My right hon. Friend is handling this in his characteristically rational way, but he made one comment that I really cannot leave unchallenged. He said that the Bill is progressing without any serious assault on its central tenet. Its central tenet is that for a wide range of offences, which under the current criteria would include the expulsion of the hon. Member for Bradford West (George Galloway) for impugning another Member of this House—not a financial or criminal offence—Members could be cast to a jury in which effectively one member, or 10%, could vote and find them guilty. In other words, 90% of a Member’s constituents could think that they should stay and 10% could think that they should go, and on that basis, under the Government’s proposals, the Member would be thrown out.”
“This goes straight to the point that I raised with my right hon. Friend about the hon. Member for Bradford West (George Galloway), who, if I remember correctly, was suspended for 21 days for refusing to apologise after impugning the merits—shall we say?—of other Members of this House. Many things would lead to this. Ian Paisley the elder was, I think, named a couple of times and suspended. These things should not come anywhere near to causing a recall. That is part of the problem with the Government’s mechanism, which is being held up as precise and effective but is in fact a blunt weapon of considerable size and unexpected outcomes.”
“I favour a recall Bill and understand that my right hon. Friend has found it difficult to get an agreement, but might we at least have some logic in this process? Under the mechanism set out in the Bill, a Member of Parliament who was arrested at a demonstration and imprisoned would be forced to take part in a new election if 10% of his constituents disapproved of his position.”
“I thank the hon. Gentleman for referring to our committee, but I think he underestimates the wisdom of the public. When I had my by-election, the policy I was campaigning against had the support of 72% of the public, and yet I was returned by 75%. In the proposal authored by my hon. Friend the Member for Richmond Park (Zac Goldsmith), the thresholds are sizeable: there would need to be, in effect, 15,000 votes in a normal constituency and then 50% of the constituency would have to agree before a recall could be triggered. That is a much higher threshold than this rather ill-thought-through Government proposal.”
“At the risk of repeating the hon. Gentleman’s point, I remember that we discussed that issue at the time. Surely the outcome of his whole argument is that the public are wiser than we give them credit for. They were wiser about his private life, they are wiser about the influence of big money and they are wiser about our politics. There are many Labour members in my constituency who vote against me religiously but would never vote for a recall, because they think that I am doing my job. Is that not what we end up depending on?”
“Friend the Member for Richmond Park (Zac Goldsmith), who has been a principled campaigner for these reforms for some time. I shall not take up much more of the House’s time, but I want to remind hon. Members of the differences involved. The Government’s proposal would take either a criminal mechanism or the House’s judgment and turn it into a one-off, 10% referendum. Then it would be over. My hon. Friend’s proposal would have a 5% first threshold to start the process. That would trigger the timetable, and a 20% threshold would follow. In my constituency, that would equate to just short of 15,000 voters. I have never seen a campaign in my constituency get 15,000 voters to go out voluntarily and put their name on a petition.”
“His was not the only case of that kind—I could have picked a number of others—but that was not justice, it was not democracy, and it would not improve this House to formalise such a process by means of the mechanism with which the Minister has presented us today. Such a system could be made to work only if we replaced the standards and privileges process with a judicial process. I do not think that the House really wants to introduce the law into its mechanisms, but if it wants to adopt a test it will have to be a judicial test. I suspect that, if I were ever in front of the Standards and Privileges Committee, I would be looking for a judicial remedy immediately. So this is not a recall Bill as it stands; it is a parliamentary expulsion Bill, and we should understand that. I support the proposals made by my hon.”
“It was someone who was no friend of mine and, indeed, no friend of almost anyone in the House: Ken Livingstone. About a decade ago, he received income from a series of speaking engagements. He went to the Registrar of Members’ Financial Interests and asked how he should declare that income, and he then declared it in the way the Registrar recommended. Later, someone found out how much money he had made. I think that it was more than £100,000, but in any case it was a lot of money. He was then suddenly hauled before the Standards and Privileges Committee, and forced to make an apology here in the Chamber. Why? He was an outsider. He was a maverick. He had no friends in the House, or at least no friends in the parties in the House.”