Legal Hackette Lunches with Dominic Grieve QC

Over slow-braised pork belly and sausage cassoulet the former Conservative attorney general now charged with chairing the Intelligence and Security Committee (ISC), discusses the legal justification for air strikes on Syria, his suspicions over changes to the ministerial code and why the government thinks lawyers are from the planet Fark.

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Having been unceremoniously sacked in David Cameron’s last reshuffle, Dominic Grieve QC appears to be embracing the freedom to speak to his mind and pleased to have found a new role chairing the ISC following Malcolm Rifkind’s departure amid allegations of cash for access.

Grieve is keen to stress the corporate nature of the nine-strong committee, which he points out is not dominated by government backbenchers. ‘There are only four Conservatives on it, three Labour, one SNP and a cross bencher from the Lords.’

It has, he says, a ‘very clear scrutiny remit’ and has identified three weighty areas of interest: the Draft Investigatory Powers Bill (on which it will work closely with the joint bill scrutiny committee); drone strikes; and the historical rendition and detention involving the UK with the United States.

‘It’s early days, but my impression is that we’re working together well. We’ve started off an induction period, getting to understand the work of the agencies, and that’s brought us together. And we’re just starting to take evidence looking into the Investigatory Powers Bill.

The Investigatory Powers Bill

The controversial bill, dubbed the snooper’s charter, and which allows the security services to intercept communications between individuals, has been significantly watered down from the original, to include the requirement for judicial authorisation.

Under Rifkind the ISC prepared a report on the initial bill last March. ‘We’re going to want to compare what was recommended with what the government is now proposing,’ says the new chair, adding that in many places, the government has taken up the recommendations of the previous committee.

‘Where it hasn’t, we’ll probably want to look if there was a good reason for not doing so or whether we agree with the original committee’s view, or whether things moved on’.

But he adds: ‘I detect, quite independently of the committee’s work, that some of the polemic over this piece of legislation has died down a bit. That’s not to say there isn’t a lot of detail to be looked at or that it isn’t controversial. It is controversial. Anything that gives powers to invade privacy and confidence is going to be controversial’.

He acknowledges the concerns raised by the Bar Counsel over legal professional privilege (LPP). But notes: ‘If you suspect that a communication is in order to further a criminal enterprise, whether it’s terrorism or serious crime, LPP doesn’t apply to you. If you’re using your solicitor or lawyer as a vehicle for committing crime, there is no privilege.

‘The difficulty has always been that if you strongly suspect that’s what is happening, the only you can find out if the privilege has been breached is by accessing the material’.

He suggests that a ‘whole series of safeguards’ have already been put in place, but accepts it is ‘an area that needs very close attention’.

Although, he adds: ‘The idea that some have put forward that you can simply treat this area as a no go area under any circumstances is unreasonable.

‘I’m afraid you’ll simply find that people find crooked lawyers or lawyers who share their ideological viewpoint in order to do their bidding, and in which case we’re going to be left poorly protected.’

He agrees that those who are likely to make confidential communications ought to have a special level of protection, but asserts that the current code guidelines for the intelligence agencies already make clear that that exists. Though he suggests: ‘It can be beefed up and the bill goes some way to doing that.’

Drone strikes

It is, he says, impossible to answer the question of whether, if he were still attorney, he would have advised the PM that the drone strikes were lawful.

But he is clear that Article 51 of the United Nations Charter provides a legal basis for taking action against individuals, be they British nationals or foreigners, who are operating out of ‘ungoverned space’ in a foreign country and are threatening you, your countrymen or your allies.

‘It’s absolutely crystal clear – you have a right to self-defence,’ though he suggests it is ‘desirable that you should try to get a UN Security Council resolution to deal with the matter’.

Explains Cameron’s for chief law officer: ‘The prime minister has made clear that the basis on which they were launched was the right to self-defence and the imminence of the threat.’

While accepting that, he says the committee is keen to look into the intelligence base behind the decision to make the strikes against the two men from Wales and the recent case of Mohammed Emwazi, aka Jihadi John.

‘I hope we will be able to do that and we will try to publish a report. But as with all reports by the ISC there is always the question about how much can be made public. But we will do our best.’

The legality of air strikes on Syria

As with the drone strokes, Grieve states: ‘I never thought that the issue of taking military action in Syria against Daesh/IS raises complex legal problems provided the factual basis is there for it.’

He is ‘comfortable’ with the legal basis, provided it is founded on the facts, which require that there is an ‘imminent’ threat and that the measures being taken to meet that threat are are ‘necessary and proportionate’.

Following the Paris atrocities, he notes that the UN Security Council has backed a resolution, authorising all necessary measures to deal with Daesh/IS.

‘That is in fact a lawful authorisation to take military action,’ he suggests, adding the caveat that it ‘doesn’t give you a blank cheque to do anything you like’ and raising the need of having a long-term strategy to follow any action.

‘We have examples in recent history of having a perfectly good legal base for taking military action, but at the end of the day the military action has not lead to some of the hoped for consequences.’

He cites the example of Libya. ‘There was never any question that the military action against Gaddafi to stop him slaughtering his own citizens had been authorised by the UN. But we also have to recognise fours years down the road that, although Gaddafi is gone and he’s no longer threatening his own citizens, Libya is not in a good a place.’

In insists: ‘That doesn’t mean that the decision taken was wrong. I still think it was justified. If we hadn’t taken military action against Gaddafi he would have killed several thousands of people. Unfortunately many thousands of people have been killed by others since.’

He will be supporting the government in the vote on taking military action, but stresses, that although such action is justified, it is not a solution to the problem of IS.

‘I think the House of Commons is looking for the prime minister to give some indication of a strategy for dealing with the problem. But in fairness to the prime minister that’s a very difficult thing to put together.’

Rendition

When considering rendition and detention, and the UK’s cooperation with the US, Grieve stresses the ‘historic’ nature of the issue.

‘In my time in government as attorney general I never had any reason to think the intelligence services were acting unethically. If anything, I was constantly impressed by their high ethical standards.’

But, he notes there is ample evidence already in the public domain that gives rise to ‘disquiet’ about what happened in relation to the UK’s involvement with the United States between 2001-07 and ‘whether in the process we may have allowed ourselves to participate in, or to be dragged into, practices we would have regarded throughout that period as being unacceptable.’

He is alert to the demand from certain corners for the matter to be dealt with by a judicial enquiry, which he states people are entitled to argue for. But he asks that they wait and see what the committee has to say first.

‘The committee’s been set a remit and I don’t think it’s one that’s improper for us to pursue.’

The chair is also conscious that some, particularly those who claim they were victims of the process, are reluctant to participate [such as British resident detained in Guantanamo Bay for 14 years, Shaker Aamer]. Accepting their position, he nonetheless encourages them to give evidence.

Taking part in the committee’s enquiry, he reasons, would not do them any harm or preclude them from seeking another form of enquiry if they are not satisfied with the committee’s conclusion.

Security services

The committee has also set itself the task of considering more broadly the role of the security services. Whether they have sufficient powers to counter the evolving threats, he says, is ‘a difficult question’.

But he has not formed the impression that they are hungry for extra powers, even after the incidents in Paris. And he notes the home secretary’s refusal to accede to Labour calls that the Investigatory Powers Bill be fast-tracked.

The rush to legislate to introduce oppressive pre-charge detention seen in the mid-2000s, he suggests, is absent at present.

‘Post 7/7, I was very much of the view that everyone lost their heads a bit. It’s understandable – governments feel they’ve got to be seen to be doing something and the easiest way of doing that is by legislating, but that’s not a very good idea.’

One area where the security services are keen for progress, he says, is the Investigatory Powers bill. And, he asserts, their desire is ‘with good reason’.

‘The Regulation of Investigatory Powers Act 2000 is out of date; it’s not transparent and it creates difficulties which shouldn’t be there. The agencies are immensely keen to have a new structure and I think they should be in a position to get it.’

The committee’s programme, he indicates, is likely to take keep it busy through to the next parliamentary session and possibly the summer of next year. But he says there are other things he would like to look at – ‘the services more broadly and what I would call good house-keeping, which tends not to be so interesting to people, but actually is part of the committee’s job – are we getting value for money, what are the diversity policies like and how are they shaping up?’

Human Rights Act/British bill of rights

The government’s desire to introduce a British bill of bights and alter the status of the European Convention on Human Rights (ECHR) is one close to Grieve’s heart. His strident opposition to the proposals cost him his job as top law dog.

A copy of the proposed bill was apparently leaked to The Sunday Times earlier this month. Where it came from, Grieve is unsure, but he says there are thought to be internal government drafts circulating.

The content of the leaked bill is much watered down from the withdrawal from the Convention originally mooted. In something of a fudge it proposes that the UK remain a signatory, but that domestic judges are not bound by decisions of the Strasbourg court.

‘I have the impression that the government has begun to realise that its proposals are fraught with difficulty.’

He identifies two key problems. ‘The first one is that if you are going to create a bill of rights, is it your intention to create incompatibility with the convention?

‘Of course you can create incompatibility with the convention, but if you do, then the international consequences of doing it are very considerable. And the government may be coming to realise that, for all its imperfections, the convention is very important.’

He points out that it was only last week, in response to a question from Jeremy Corbyn about putting human rights experts in British embassies, that the prime minister declared the promotion of human rights internationally to be a key strategic objective of the UK.

‘If you’re promoting human rights internationally, how do you do that if the UK is in persistent breach of an international legal obligation that has probably done more than any single other thing on our planet to improve human rights?’ asks Grieve not quite rhetorically.

The second, ‘more parochial’ issue, he suggests, concerns the devolution settlements of Scotland, Wales and Northern Ireland, which are all underpinned by the Human Rights Act and the ECHR.

‘How do you legislate to include those without breaching the spirit and, actually I think now, the letter of the devolution settlements?

‘I always thought that this was going to be a very serious problem. You either have to take them with you or you legislate against their consent.’

He is unsure how the government will overcome this. ‘You’ll have to ask the question of government ministers, but I doubt very much you’ll get an answer.’

He questions whether the government intends the Convention to be the basis for the bill of rights, with different ways of implementation.

It has, he notes, been suggested for example that the clause in the HRA about read-down should be abandoned, or that the Rome declarations of incompatibility should be changed.

‘Another  proposal is that you tweak or gloss the text of the convention in its entirety, like article 3 (prohibition from torture) or 8 (right to family and private life) – in which case you have to ask the question to what extent you can do that and stay compatible with the convention.

‘These are all possible, but they start making it much more cumbersome to work the system domestically,’ suggests Grieve.

The thorn in the government’s side, says he does ‘not quite understand’ what legislating for parliamentary supremacy – a proposal in the leaked document – means.

‘Parliament is already supreme. As we’ve seen with prisoner voting, if parliament doesn’t change the law, the law stays as it is despite the fact that the ECHR has said something should be done about it.’

But, at the same time, where there is an incompatibility, he asserts, the government has a duty to try to resolve it. ‘That means either pulling out of the treaty obligation altogether if they don’t wish to resolve it, or initiating a measure to bring about compatibility, by changing the law.’

He continues: ‘What I don’t like about what’s been going on is the hint that the government is trying to find a justification for failing to try to meet its international legal obligations.’

He is ‘a bit suspicious’ about the supremacy of parliament proposals and ‘a little bit puzzled’ by the government’s ‘completely inexplicable’ decision to change the ministerial code to remove the reference to international legal obligations.

The Cabinet Office has made clear that, despite the redraft, the responsibility to respect international legal obligations remains the same. But, says Grieve, ‘the fact that they played around with the wording does strike me as very odd’.

He suggests the change may have been made so that ministers are not reminded so frequently by civil servants of the need to respect international legal obligations.

‘Having it in black and white on the minister’s desk is not a bad thing.’

Some international legal obligations, he explains, are capable of interpretation by international tribunals, but once they have been interpreted, the government has an obligation to follow that interpretation.

Though he would not go as far as Lord Kerr, in his dissenting judgment in the benefit cap case, in which he suggested ‘rather startlingly’ that the court should give direct effect to international legal obligations on the basis that the government must have meant what it said when it signed up.

Grieve dismisses Kerr’s ‘pretty radical’ view that would ‘rather blow open our dualist system of international and national law’.

Shuffled out

Grieve told the BBC in July 2014 he was ‘sad’ to have lost the AG job that he had held for four years. Though he did not go into politics with the ‘intention of being niched in semi-legal roles,’ he said he was happy to have to had the job.

And if future ministerial opportunities came his way, he would be ‘happy to have them’, though he is ‘slightly sceptical that is likely to happen’, due to the ‘degree of variance’ between him and his colleagues over the ECHR.

Brushing off the suggestion that he is the only principled person in the Tory party, he states there are plenty. ‘All political parties can only operate by being, to an extent, broad-church coalitions of interest. You do have to adjust your views to accommodate your colleagues.’

But, he says: ‘There does come a point where, if you think they’re doing something daft and unjustified, that it’s a red line. For me what they appear to be doing with the ECHR is a red line.

‘The prime minister knew that and I think that’s why he got rid of me. Indeed his press officer was kind enough to say that was the reason – 48 hours after I left.’

He adds, with a hint of disappointment: ‘So I think we can be satisfied that that was the reason why I went, even if he himself [Cameron] never told me that at the time I went.’

With humility, he says: ‘I’m sorry for it. In a sense it’s an admission of failure – I have failed to persuade him.

‘But on the other hand it’s liberated me to say what I like’.

During his time in government, Grieve says, he never considered resigning despite differences of opinion. ‘We were never at a point where there was an issue over which I might have had to resign.

‘Clearly, it was apparent to me that there was a likelihood that we might end up with an insoluble conflict. I think I had perhaps rather thought that there might be some more discussion on the subject before we came to that point.’

The role of the Lord Chancellor

Grieve skirts the question of whether he would have liked the role of justice secretary and lord chancellor. The latter post he does think needs to be held by a lawyer, but by ‘somebody who has an understanding of how the law works’. And the present incumbent, Michael Gove, he believes has a ‘very instinctive understanding’ of it.

And Gove’s understanding makes him [Grieve] ‘optimistic’ that he [Gove] will be able to manage the relationship with lawyers who raise policy issues.

There is no ideological aversion to lawyers, he says, rather a lack of understanding of the law’s importance. ‘One of the difficulties he [Gove] undoubtedly has is that lawyers are becoming sort of aliens from another planet. We pop up and say to government “this doesn’t feel very good to us” and they look at us if though we’ve come from planet Fark.’

While there are ‘plenty of civil servants and colleagues’ who understand the importance of the law, he suggests that 40 or 50 years ago there were many more lawyers doing roles in government.

‘I sometimes worry that there is a great divide between people who have some understanding of the way the law works and the importance of operating within in a legal framework and people for whom, although they may be outwardly deferential, don’t always see the point’.

It’s not that he thinks there is any ‘great crisis,’ but he goes on: ‘Is there less understanding than there was 30 years ago? I think probably yes – because there are fewer lawyers in government and above all fewer lawyers who have experience.’

Harking back to the days of Margaret Thatcher – ‘a stickler about legal propriety’, he observes: ‘She may well have been frustrated and irritated and angry, but she understood legal principles had to be upheld. I’m not sure things are the same way now.’

Background

Born in 1956 in Lambeth, South London, Grieve was the son of barrister and Solihull MP, Percy Grieve QC, and Anglo-French mother Evelyn Mijouain. He went to Westminster School and read history at Magdalen College, Oxford before turning to the law, which he says was ‘a bit of a fall back’.

Uncertain what he wanted to do, though ‘pretty sure’ he wanted to eschew a 9-5 office job, the city or banking, he tried for Foreign Office, but after taking the exams, was not accepted.

The need to earn a living doing something that could be combined with his interests in politics and his father extolling the merits of self-employment, put law in mind.

After Oxford, he did a diploma in law at Central London Polytechnic (now the University of Westminster).

It was, he recalls ‘rather learning by rote in those days’ and while he ‘quite enjoyed’ his legal studies, he ‘didn’t get carried away with it’ and only really started enjoying himself when he started appearing in court.

Called to the bar by Middle Temple in 1980, he always had politics in mind and became a local counsellor within a couple of years of starting out.

Pursuing his political ambitions, he was selected to fight an ‘unwinnable seat’ in Lambeth at the 1987 election. Coming second served only to fuel his parliamentary ambitions and he tried, but failed, to get a seat for the 1992 election.

Despite disappointment at the time, he says, it was a ‘very good thing that it happened’ because the next five years at the bar were ‘rather transformational’.

‘My practice, which had been interesting – diverse, but I don’t think particularly punchy – suddenly started to take off. I had changed chambers and started to specialise in health and safety and environmental law – and I really started to enjoy myself.

‘I had a period from about 1993-97 were I was always very busy. My earnings were going up and I thought this is a new world.’

Things were going so well that when, despite his efforts to do so, he initially did not get a seat to fight in the 1997 election, he announced to his wife (barrister Caroline Hutton) that was giving up all ambition of going into parliament to concentrate on his legal career.

‘She was very relieved,’ but a week later he became the candidate for Beaconsfield and was elected with a majority of 13,987 votes.

Grieve is measured, courteous and assured in a quiet and understated manner. He is, he says, ‘interested in what makes human society successful’ and in community cohesion, chairing the Citizens UK commission on the involvement of Muslims in public life.

‘I think that goes back to my time in Brixton, which exposed me very much to the world of a diverse UK.’

Brought up in a ‘rather more compartmentalised environment’ he had not paid a great deal of attention to the issues that surrounded multiculturalism and what the increasingly diverse and pluralist UK needs to do be a ‘successful country’.

His Christian faith – he is a practising member of the Church of England – to a degree informs what is does and makes him ‘accountable’ though he is quick to state that ‘faith doesn’t give you a monopoly on wisdom’.

A busy politician, he still tries to make time for his other interests, which include running, walking, mediaeval architecture and collecting oriental rugs.

With that, our lunch in Portcullis House’s ‘Adjournment’ café is adjourned. He has to meet a constituent keen for civil partnerships to be extended so that she and her sister can enjoy the tax and inheritance benefits – a cause with which he has sympathy.

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2 thoughts on “Legal Hackette Lunches with Dominic Grieve QC

  1. I am not a natural tory but I am always impressed by Dominic Grieve. His views and opinions are always well reasoned. He seems to be able to separate the legal and political issues. His views on air strikes in Syria and Libya come across to me as “Yes they are proportionate (legal) but are they wise (political).
    Maybe he talks too much sense to rise to great political power (Alan Johnson, Michael Portillo, Menzies Campbell).

    Like

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