National Security Bill

Debate between Alistair Carmichael and David Davis

Report stage
Wednesday 16th November 2022 Commons Chamber

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

I welcome the Minister to his post. He is very much a round peg in a round hole—despite my historic critique of the Home Office, that is meant as a compliment. I thank him for seeing me and my colleague, the hon. Member for Barnsley Central (Dan Jarvis), on the amendment the other day. He will be unsurprised that he did not persuade me, but I thank him for the time in any event. In view of the short time, I will focus mostly on amendment 14, which I hope we will press to a vote. It is in my name and that of the hon. and gallant Member for Bromley—not Bromley, but Barnsley Central; not quite Bromley. That amendment strikes out clause 27.

A decade and a half ago, the British public were shocked to hear stories of British complicity in American and other countries’ acts of kidnap, rendition, torture and assassination, typically but not always by drone strikes, with the collateral damage that that entailed. Collateral damage in this context is a euphemism for the deaths of innocent women and children who happen to be standing near the original target. I use this stark language to make plain the potential consequences of what might seem like bland legalistic language in the Bill.

The legal basis of those actions—I almost said atrocities, but of those actions—was the Intelligence Services Act 1994, when we first recognised the operation of the Secret Intelligence Service. Most notably, it inserted the melodramatically named “007 clause”—section 7—which empowered Ministers to authorise criminal behaviour overseas. I was one of the Ministers who took that Bill through the House. We Ministers were briefed very firmly that, in practice, that section would authorise bugging, burglary and blackmail—the normal behaviour of intelligence agencies seeking to penetrate enemy states and organisations—not kidnap, not torture and most certainly not a licence to kill.

We the Ministers on that Bill gave our word to the House that that was what it was for, but a decade later section 7 was used to authorise the enabling of rendition, torture and quite possibly assassination as well. We know the names of several victims of UK complicity: Binyam Mohamed, Abdel Hakim Belhaj, Fatima Boudchar, his wife, and Rangzieb Ahmed, to name just a few.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

It is worth reflecting and placing back on the record that we know the names of Belhaj and Boudchar only because somebody happened to find the papers unattended after the fall of Gaddafi. That was the only way that the truth about their cases came into the public domain.

[Mr Davis]

The right hon. Gentleman is right, and it is also true that we found out about Binyam Mohamed only because of extended legal cases in the courts, which were resisted by the agencies at every turn. We know about Rangzieb Ahmed only because I got access to the in-camera papers. So this is a general problem and I will come back to that. A most recent example is Jagtar Singh Johal, who alleges that he was tortured by Indian authorities and was detained, we believe, as a result of British intelligence. Again, we know about that only because we could spot the case inside one of the commissioner’s reports. Accordingly, exactly because of that, this is literally the tip of the iceberg.

The Intelligence and Security Committee report on detainee mistreatment found 232 cases where UK personnel

“continued to supply questions or intelligence”

to other intelligence services, after they

“knew or suspected that the detainee had been or was being mistreated.”

As I said, I have seen in-camera evidence that showed quite how deliberate some of those decisions were—absolutely in the knowledge that they would be used in the process of torture. That was done rather more broadly, even when the intelligence services did not know at all where the detainee was being held, or even whether they were being held legally or not. Those are the consequences of vague legislation that awarded too much power to the authorities.

We might therefore expect clause 27 to tighten up over-loose legislation to make Ministers, officials and agents more conscious of their responsibilities, not less. Instead, it does the exact opposite. Clause 27 would provide an exemption to schedule 4 of the Serious Crime Act 2007. Schedule 4 sets out the circumstances in which assisting and encouraging a crime that occurs overseas is still a criminal offence. Clause 27 means that it would no longer be an offence to assist a crime overseas where someone’s behaviour is necessary for

“the proper exercise of any function of the Security Service, Secret Intelligence Service or GCHQ or...the armed forces.”

In plain English, that would effectively insulate Ministers and officials from responsibility for assisting or encouraging heinous overseas crimes.

To see the potential impact of that, consider the case of Abdel Hakim Belhaj. Mr Belhaj, a Libyan dissident living in exile, was detained and subsequently tortured in both Thailand and Libya. It later emerged that UK information sharing had contributed to his detention and rendition. After years of litigation and wrangling, the Prime Minister wrote a letter of apology to Mr Belhaj, and the Government admitted responsibility for the role that UK intelligence played in his rendition. That was a civil rather than a criminal case, but if officials are certain that they will not face any criminal liability for assisting torture and other serious crimes abroad, reckless information sharing of the kind seen in Mr Belhaj’s case will occur more frequently and with more impunity.

I understand that one reason for the change in the clause is apparently to allow the easier transfer of bulk data. That is an especially risky activity to which to give legal cover. The transfer of bulk data is a euphemism for saying that we give the Americans—principally—so much data that we do not have time to check it all. That is it in a nutshell. As Edward Snowden revealed, that has historically amounted to unimaginably vast quantities of data, of course about suspects, but also about innocent people. Because of the high level of secrecy that applies to current bulk data issues, I have no current UK example to hand, but I can exemplify this by outlining the behaviour of our closest ally, and the principal recipient of bulk data, the United States.

The greatly respected President of the USA, Mr Barack Obama, used to go to the White House Situation Room on a Tuesday once a month to authorise a kill list—20 people who were going to be assassinated by the United States and who were perceived to be its enemies; typically, al-Qaeda officials and the like. President Obama talked proudly of how the best technology—artificial intelligence, algorithms and, crucially, bulk data—was being used to identify targets.

However, that comes with enormous risks, most plainly shown by the case of Ahmad Zaidan, who was selected for targeting by the US National Security Agency based on algorithms using bulk data. Fortunately, he was not assassinated. I say “fortunately” because there had been analysis of his telephone contacts and he had talked to Osama bin Laden and all the al-Qaeda high command, but, before the drone strike was organised, it was suddenly realised that he was the Pakistan office head of Al Jazeera. The analysis had thrown up an innocent man who could have been assassinated.

That is why we must be careful about what is handed over without knowledge of the bulk data. If we give greater legal cover to officials sending bulk data to other countries, cases of bulk data being used in the commission of serious crimes abroad—even against innocent people—will happen more frequently.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Debate between Alistair Carmichael and David Davis

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

[Mr Carmichael]

I wish to speak also to amendments 14 to 19, which were tabled in my name and the names of other right hon. and hon. Members.

It is worth reminding ourselves at the start why we are debating the Bill and why it is being proceeded with in all the dispatch that is apparent, what with Second Reading having been just on Monday of last week. As we know, the Government had a bit of a narrow squeak—a legal term—in the Investigatory Powers Tribunal, and that case is now going off to the Appeal Court. We are now getting what many of us, including those in Reprieve who brought the case to the IPT, have long asked for, and that is a regulatory statutory footing on which the very difficult decisions undertaken by the police, special branch, the security services and others should be done. That is something on which there is broad consensus, which was reflected in the attitude of the House, for the most part, on Second Reading. However, as was apparent from the debate on Second Reading, many of us in different parts of the House have serious concerns about the way in which these matters are being put on to this regulatory statutory footing.

Essentially, it seems to me that the Government have been brought to this point somewhat grudgingly. They have said, “Yes, we will put these things on to a statutory footing, but we will do it in such a broad and general way that, in fact, we will be able to continue to do whatever we have done in the past.” They are seen to embrace change in a way that allows them to continue to behave in the way they have always done. I suggest that that is not, in fact, sensible for any number of reasons. It defeats the purpose of putting these things on to a statutory footing, but I am pretty certain that, sooner or later, it means we will be back here looking at a future Bill because this one is not fit for the purpose the Government claim for it.

The point made repeatedly on Second Reading is that many of the concerns that I and others have, which are reflected in the amendments, are in fact covered by the Human Rights Act 1998. One of the difficulties I have with that is that, throughout their pleadings in front of the IPT, the Government said that the Human Rights Act does not, in fact, apply to the actions of those responsible for covert human intelligence. When we eventually hear from the Minister, could he address a couple of points? First, will this new attitude towards the Human Rights Act, in its applicability to the activities of covert human intelligence sources, be reflected in the pleadings of the Government when it comes to the Appeal Court?

Secondly, can the Minister confirm that the Bill will allow these sources to operate overseas? That being the case, what view do the Government take of the application of the Human Rights Act to the activities of these sources overseas? The position of the Government hitherto has always been that the application extraterritorially—overseas—of the Human Rights Act would not cover these instances, so it is difficult to see if there would be any protection at all in relation to activities overseas.

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

I might be able to help the Government along with this. It appears that the power to authorise a covert human intelligence source to commit crime outside the UK as well is provided for under section 27(3) of the Regulation of Investigatory Powers Act 2000, which states that conduct authorised under part II of that Act

“includes conduct outside the United Kingdom.”

[Mr Carmichael]

With help like that, I am not sure that the Government necessarily need any obstruction. Yes, I am certain that this provision is in the Bill for a reason, but we do need to hear from the Dispatch Box about the relationship between the Human Rights Act and activities that would be carried out overseas. When we hear from the Minister, I hope that he will address that point.

--- Later in debate ---

[Mr Carmichael]

On the point about rendition, the right hon. Gentleman will recall the Intelligence and Security Commission, when considering the Belhaj and Boudchar cases, said that in effect our services had outsourced work that they were not allowed to do in law themselves. Does not that alone indicate that those services require proper independent scrutiny? They should not be left to mark their own homework.

[Mr Davis]

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

European Union (Withdrawal) Act

Debate between Alistair Carmichael and David Davis

Thursday 6th December 2018 Commons Chamber

[Mr Davis]

What a pity, Mr Speaker. I enjoy interventions, as you well know.

My hon. Friend the Member for Eddisbury (Antoinette Sandbach) has misquoted me from somewhere. It was I who negotiated the implementation period element, precisely because it is not without hiccups. It is not without issues. There will be practical issues in the first year of a WTO outcome, but that does not overwhelm the big advantages—the massive advantages—of having the freedom to negotiate our trade deals in the future.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Will the right hon. Gentleman give way?

[Mr Davis]

I am afraid not, on this occasion. I hope that the right hon. Gentleman will forgive me. I have just almost been given instructions.

Let me now say a little about delays at Calais. The first thing to say is that the French do not intend them to happen. I know that, in our chauvinist way, we expect the French to misbehave, but that is not their intention. The prefect of the Calais region, the representative of Calais and the head of French customs have all said in terms that they will do everything in their power—through lower inspection rates, light-touch phytosanitary inspections and the rest—to ensure that the trade between Calais and Dover will work. If there is a hiccup—we have had them before, with driver strikes and so on—we shall be able to divert 20% to 40% of the trade to other ports. That is a good example of the wild assertions that are simply not right.

I am very sorry that the Chancellor is not here, because I wanted him to hear what I had to say about the projections to which the hon. Member for Dundee East referred and on which I think he relied rather too much. It was not “The Rees-Mogg Times”, or some other organisation on one side of the debate, that criticised the Bank of England. It was a Nobel prizewinner, Paul Krugman—hardly a Brexiteer—who castigated the Bank, as did Andrew Sentance, a former member of the Monetary Policy Committee, who, again, is not a Brexiteer. Those were simply disgraceful polemical projections. They were not forecasts in any way, and I think that the Bank will come to regret them, if it has not done so already. So that is the practical element.

There is another issue to bear in mind. The WTO option is a walk-away; that is the problem—it is a walk-away. It is an outcome that we do not want, but we need it to have a proper negotiation; that is a hard fact that we have to face. We all think that we will suffer most from a WTO outcome, but that is simply not the case. There is an asymmetric arrangement here. We have a floating pound, to cite the German chief economist of Deutsche Bank, and the movement of the pound is what has protected us so far in the past two years, and it will protect us again. We have unilateral capability that nobody else in Europe will have: the ability to change our taxes and regulations to make sure we get the FDI—foreign direct investment—that the hon. Member for Dundee East talked about.

Finally, of course, we have the upside of the other free trade agreements, and that is another reason why I am sorry that the Chancellor is not present, because one of the big differences between him and me is that he does not believe free trade agreements deliver a large economic bang for their buck. The past 30 years of world history, however, show that there are billions of people in the world who might just take a different view on that.

The second option I want to talk to briefly is the Norway option. I looked at that option very carefully; indeed, I got castigated from my own side for paying it too much attention, but I thought that it was very important to ensure every single possible option was explored well, and I was approached by, and talked at great length to, my hon. Friend the Member for Grantham and Stamford (Nick Boles).

Norway plus appears to its protagonists to have three virtues. First, they say that it is the easiest option to negotiate; it involves the smallest movement and therefore is the simplest negotiation. Secondly, they say it meets the conditions of the referendum. Thirdly, they say it is the softest of soft Brexits. All those are possibly good arguments, except that they are not true. The negotiation would not be simple; we cannot simply stay in the EEA, as that does not work. Jean-Claude Piris, ex-head of the EU legal service, said in terms that we will have to renegotiate every single clause of the EEA arrangement. It will require unanimity from 30 different members, and they will exact a price. One of the advantages of Norway, we would think, is that we could control our own fisheries policy, but would we get that with a vote from Denmark, from France and from Spain? No, we would not. That is one of the problems: the negotiation hurdles are very big. It is reported that Michel Barnier said this was a possible outcome, but only in conjunction with customs union membership. With the two together, we are locked in; we are basically in a worse position than the Government’s proposal. We are basically locked into the single market—no say and no control, but in every other respect, including the free movement of people and paying money, we will be locked in. Norway does not find it satisfactory politically, and, frankly, a country like ours certainly should not. So that does not work. Finally, it is said that this option delivers on the result of the referendum. No, it does not. Free movement, money, independent trade policy, jurisdiction of the supranational courts, rule taker—on all those criteria, we fail under Norway.

So what is left? The last option is the free trade agreement. I have long thought this was the best option. This is the one that has been called Canada plus, plus, plus and super-Canada and a variety of other names, and somewhere buried in the middle of my old Department of DExEU there is a pile of papers laying out how this can be done in detail, including some legal text. The concept is simple, and that is important in this context, because we will have very limited time in the last few months to negotiate this. I made the point a couple of years ago when making this argument that these are the three months that matter: the EU always takes the negotiation down to the wire—to the last day, the last hour, the last minute, the last second, and sometimes it stops the clock to allow the negotiations to conclude. And that is what is going to happen here; I suspect we are going to go deep into time on this.

Why was this option attractive? It was attractive because we could build it from precedents. Canada is an EU-negotiated precedent, and we could add to it—this is the plus, plus, plus bit—all the bits that are not good about the Canada option. There is no decent mutual recognition agreement; we can lift that out of South Korea or the Australian deal. There are no decent phytosanitary arrangements; we can lift that out of New Zealand. So we can go back to the EU and say, “Here we have a proposal constructed entirely of your own precedents. It can’t undermine the single market, because you negotiated it. It can’t undermine the four principles, because you negotiated it.” That is the attraction of the Canada plus, plus, plus option—it is based on that template. It is all based on precedents previously negotiated by the Commission. So it is perfectly possible for us to create a draft legal text on the basis of where we are now and put that back to the EU and say, “The £39 billion rides on this. You have to agree the substantive elements before we sign off and then you have to agree the detailed elements by the end of 2019.” There is plenty of time to do that on the basis of existing boilerplate text. That is what we should be doing. We should stop grovelling to Europe and start grasping our future.

Oral Answers to Questions

Debate between Alistair Carmichael and David Davis

Thursday 3rd May 2018 Commons Chamber

[Mr David Davis]

What my hon. Friend has described is the exact purpose of the negotiations. We are seeking to retain as much as possible of the existing European market, and at the same time open up all the rest of the world. If I may, I will refer back to the question asked earlier about Ford. One of the companies that we visited in North America, on the Canadian border, was Ford, because it is state of the art in dealing with cross-border component traffic to support car manufacturing. It is very good at that, and it will be in Europe too.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

Can the Secretary of State explain to the House how the transitional arrangements he has negotiated for our fishing industry will work in relation to the renegotiation of the EU-Norway-Faroes deal on mackerel? Can he tell the House who will lead the negotiations and when that will happen?

Oral Answers to Questions

Debate between Alistair Carmichael and David Davis

Thursday 9th March 2017 Commons Chamber

[Mr Davis]

Yes.

[Mr Alistair Carmichael (Orkney and Shetland) (LD)]

T6. The manufacturers’ organisation EEF last week highlighted the difficulties that manufacturers are having in filling skilled engineering posts. Manufacturers warn that if the situation is not to get worse post-Brexit, they will need the flexibility to employ and deploy people across Europe. What consideration has the Secretary of State given to the representations from EEF, and what reassurance can he give?