As published in the Guardian G2 section:
Tory rebel David Davis: ‘We haven’t had a Stasi or a Gestapo in Britain, so are intellectually lazy about surveillance’
David Davis looks tired and puffy-eyed. It’s the morning after Theresa May’s unveiling of the government’s flagship investigatory powers bill, and he has spent the night getting to grips with its 296 pages. The battle over the bill is going to last for months and Davis, who from the Conservative backbenches has become one of the foremost defenders of civil liberties, will be leading the critics, but he knows this initial period is crucial in shaping public attitudes.
“The government had the most amazing propaganda blitz,” he says. “GCHQ had a three-day advertorial in the Times with gushing pieces from young journos, so we knew we were going to get some sort of heavy-duty spin on all of this, and the spin was in my direction – we’re going to be more transparent, we’re going to have more accountability, we’re going to bring in the judiciary, we’re going to limit it. All of it turns out to have been overstated. They’re making lots of rhetorical moves in the right direction, but the substance doesn’t add up. There are loads and loads of holes in it. My impression is they didn’t finish writing the bill until the day before they published it.”
Davis, who with Labour deputy leader Tom Watson mounted a successful legal challenge to controversial aspects of the 2014 act that currently governs the retention of communications data, is now readying himself to try to fill in those holes. But the problem for critics of the bill, he says, is that the public doesn’t care enough about encroachments on their freedom.
“It’s astonishing how few people take an interest in this country,” he says. “In every other country in the world, post-Snowden, people are holding their government’s feet to the fire on these issues, but in Britain we idly let this happen. We’re the country that invented James Bond and we like our spies. We have a wonderful illusion about our security services, a very comforting illusion. But it means we’re too comfortable. Because for the past 200 years we haven’t had a Stasi or a Gestapo, we are intellectually lazy about it, so it’s an uphill battle. Even people who are broadly on my side of the political spectrum in believing in privacy and liberty tend to take the state at its word too often.”
The bill was published in draft form and now goes before a joint committee of both Houses of Parliament. The government will amend the bill in the light of the committee’s report and bring it before parliament in revised form in the spring. Davis says the role of that joint committee – which was being finalised when we met – is vital, and he was worried it would be “packed with people who the government sees as trusty. It may be terrifically effective or it may be a complete damp squib.” Couldn’t he have wangled a place on it? “I told them I would serve,” he says with a laugh. “The smart thing for them to do would have been to put me on it, because that would have pinned me down.”
He fears Labour will give the bill too easy a ride. “The opposition have not really had their eye on this, and it’s a pity Andy Burnham [the shadow home secretary] was quite so gung-ho in favour of it. The Labour party has never been a very good opposition in modern times. In the last five years I sat on the backbenches thinking ‘We’re getting away with blue murder here.’ There’s a trick to opposition. It’s not being horribly aggressive; it’s about being forensic, getting all the facts together and knowing the argument better than the minister does.”
The key defect in the bill, according to Davis, is the authorisation process. “In this country, ministers do the approval of the most important intercepts. Theresa May does 2,700 a year. She takes this more seriously than some previous home secretaries and is very assiduous, but she can’t spend 12 hours a day on it.” He believes domestic intercepts should be authorised by a judge.
“What they have tried to do, to meet the arguments of people like me, is say: ‘We’ll have a judge look at it after the event.’ But the basis on which the judge makes the ruling is on what’s called judicial review principles. Judicial review is about procedure; it’s not about the facts and the evidence. As long as the home secretary has followed the correct procedure, the judge will go along with it. Judges hate overturning the executive, and it happens very rarely.”
Davis is also suspicious of the requirement for phone and internet companies to hold communications data for a year. “What we are told by the authorities is that they don’t look at it unless you are a person of interest. That’s plausible at one level, but it still interferes in your privacy and introduces all sorts of risks. It’ll be possible for a 15-year-old to hack into it, let alone the Chinese.” He says holding the data for a year is far too long; Germany specifies 10 weeks.
The other area of concern Davis pinpoints is that under the terms of the bill it will be possible for the police or security services to record conversations between suspects and their lawyers. “This used to be an absolute no-no in Britain. I talked to Jack Straw about this. He said: ‘When we’re intercepting some criminal or putative criminal and he talks to his brief, they had to stop the recording straightaway.’ But that doesn’t happen any more. They keep recording, they file it, and they even share it with the prosecution lawyers. They’ve damaged the so-called equality of arms principle in law. One of the terrible things about this is that it may one day lead to a real terrorist being let out on the streets on a technicality.”
Is he confident the bill can be amended? “I think quite a lot can be done,” he says. “The Lords will be very important in changing the bill; the Commons may not. That depends very much on the opposition. We have to build alliances, and at the moment it’s a pretty thin alliance. What we really have to do is win the public argument.” He says critics of the bill have to tread warily. “This is an important function of the state, and we mustn’t cripple it. More often than not you will find the security agencies and the police will pitch for more than they really need. You strike a balance by finding what the practical requirement is.”
He says in many ways it is easier for him to stand up for civil liberties than those on the left. “When we were in opposition and I was shadow home secretary, Mark Oaten, who was then the Lib Dem spokesman on home affairs, said to me: ‘We can only stand in your shadow when it comes to objecting to counter-terrorism laws because we are susceptible to being accused of being soft on terrorism whereas you aren’t.’ Oppositions are terrified of being accused of being soft on terrorism. I had a hard rightwing persona, and that’s helped. People think I will strangle terrorists with my bare hands. Fine, that’s useful. It allows me more freedom, whereas someone’s who’s a liberal – people will say: ‘Typical leftie.’ That’s what drove the Blairite home-affairs agenda. It was adopting a butch rightwing approach, often thoughtlessly. It was a positioning exercise, rather than a policy exercise.” He thinks Burnham, in embracing the bill, has fallen into the same trap.
Davis doesn’t see himself as a libertarian, preferring the term “rule of law enthusiast”. Where necessary he will “make a practical deal”, as he says he did in 2008 when he resigned his seat to fight a byelection based on his opposition to extending detention without charge to 42 days. “I had to make a judgment. If we tried to be too purist, we could lose the whole battle, but if we gave them 28 days we could win over enough people to defeat them, so that’s what we did, even though we knew 28 days was still too long.”
Nor does he want to be seen as a single-issue politician, but he has increasingly taken on the role of defender of civil liberties, tracing it back to his resistance to what he saw as the authoritarianism of the Blair government. As shadow home secretary, he opposed both control orders and ID cards. “Up until then, no one would have called me a libertarian, but I was defending what I thought was the judicial tradition of Britain. My biggest problem was winning over the Tory party, and I was always running into attacks for being too soft on terrorists.”
He says that charge was made against him when he stood for the leadership of the party in 2005. Davis had been favourite to succeed Michael Howard, but he made a lacklustre speech at the party conference, lost momentum and was easily beaten by David Cameron in the final vote by party members. It is tempting to see that defeat as career-defining, and I ask him how long he took to get over it. “About two days,” he says. “We knew it was lost after that fucking awful speech.” He quotes an old American sporting adage: “The shame is not in being knocked down. It’s in not getting up again.”
Resigning his post as shadow home secretary in 2008 to fight the byelection over detention without charge meant he lost his place at the Tory top table. He says he did get a call from Cameron the day after the 2010 election, but turned down the offer of a job in government. “I felt the overture was compelled by circumstance – he thought he was susceptible to an internal coup d’etat – so I batted it away.” What would the job have been? “Probably home secretary, I guess, but who knows?” In any case, he adds, taking a ministerial job would have imposed constraints on his freedom of action, notably over Syria, where he helped to coordinate opposition to the government’s planned military action.
With David Cameron during the Tory leadership contest in 2005. Facebook Twitter Pinterest
With David Cameron during the Tory leadership contest in 2005. Photograph: Handout/Getty Images
Does he miss the exercise of power. “It’s much overrated. Many people like the trappings of power, but I don’t. When the issue is really important – as over Syria or detention without charge – you can still change the course of history.” Davis, despite being thwarted in his bid to reach the top of the greasy pole, does not want for self-belief. He will be 71 by the time of the next election, but has no plans to quit the Commons. Nor does he have any intention of toeing the line. “The whips can do nothing about me. They’ve got no levers. I don’t want a peerage, and I don’t want a job in government.”
Davis calls himself an “eclectic” politician. He has been one of the leading critics of the government’s ill-fated tax credits policy, which would seem to put him on the left, but is also strongly eurosceptic and says he is likely to support withdrawal from the EU. He favours civil liberties and a smaller state (quasi-libertarian), yet opposes gay marriage and is an old-fashioned Tory when it comes to penal policy, even supporting capital punishment (authoritarian). He says the label “rightwing Tory” was attached to him early on and was in some ways helpful, but he doesn’t accept it defines him.
His back story – single mother, grew up on a council estate in south London, went to grammar school, struggled to get to university, had a successful career in business before becoming an MP for a constituency on Humberside at the age of 38 – predisposes him to support the underdog and to be suspicious of inherited privilege. Stuck to the wall of his office at Westminster is a single A4 sheet with a quote from Harry Lime in The Third Man: “Look down there. Tell me. Would you really feel any pity if one of those dots stopped moving forever?” It is there to remind him that the dots are worth fighting for.
Davis claims to be on reasonable terms with Cameron, despite his record as a serial rebel, but there may be a mutual lack of sympathy based on their different routes to political prominence. It is in some ways odd that, in looking to remake itself back in 2005, the Tories chose the old Etonian rather than the boy from a council estate in Tooting. He is guarded when I ask him whether his conqueror has been a good prime minister. “That’s a question for historians, not for me. He’s been good at being prime minister.”
He is sure Cameron will step down in this parliament, and says he has no idea who will succeed him. “Any current contender is at a disadvantage. We didn’t see Thatcher or Major or Hague coming. We didn’t see Cameron coming. The leading contenders always have coalitions against them.” He can speak from experience on that point. The only thing he is sure of is that, having fought for the leadership twice (in 2001 as well as 2005), it won’t be him, though he says he might have stood if the Tories had failed to win in 2015 and Cameron had stepped down. “The time picks the man sometimes,” he says philosophically.