Terrorism Prevention and Investigation Measures Bill

Debate between Lord Howard of Lympne and Lord Macdonald of River Glaven

Wednesday 5th October 2011 Lords Chamber

[Lord Macdonald of River Glaven]

I entirely accept what the noble Lord says, and I am sure he is right about that. Of course, if the controlees had been confined for 24 hours in Belmarsh or even in their homes, it would have been far more difficult for them to abscond, but the control order system that we had existed largely as a result of decisions made by the courts. My point is that this control order system, as it came to be, may not in a serious sense have been protective of the public because it was so easy to abscond and because so many controlees did just that. My more substantial point is that I think that only one was ever prosecuted with a substantive terrorist offence so if the Home Secretaries were right that these people had been involved in terrorist activity, that would appear to be a failure of public policy in that terrorists in those circumstances were escaping justice.

My view is that, given the nature of the control order regime, this was not surprising. One clear finding of the review, accepted by all sides so far as I could tell, was that the control order regime was inimical to prosecution. That resulted from the reality of control orders, which amounted to the warehousing of suspects under the aegis of the Security Service and the consequent destruction of the normal routes and possibilities of evidence gathering. This was not the intention of the control order regime but it was one of its effects, and it was absolutely clear to me from material that I examined during the review that the process of building prosecutions against controlees was weak and had low priority. In fact, it almost never occurred.

For very understandable reasons, when a man was put under a control order the police would simply move on to other cases, satisfied that that individual was adequately quarantined under watchful eyes. That low prioritisation of prosecutions will always be evident so long as the system of restrictions is positioned outside criminal justice. If I am right about that—I shall expand a little in a moment—it means that to situate TPIMs outside criminal justice is not only possibly offensive to principle; it is also, finally, offensive to public safety because it lets people get away with terrorism and escape justice.

Let me say straight away that TPIMs appear to represent an improvement on what went before. The most offensive features of the previous regime from my perspective—those closest to house arrest—have gone. Relocation and long curfews will be a thing of the past. Individuals will be permitted to use electronic communications, including computers and phones, and the orders themselves will be time-limited to two years. Yet in my view the Government have failed to grapple with the central issue: the nature of the orders themselves and the appropriate space for them to occupy within our constitutional arrangements. In my report on the review, presented to Parliament alongside the review, I called for TPIMs to be attached quite explicitly to criminal investigations. That would facilitate the prosecution of serious criminals and deal with the constitutional objections that have bedevilled control orders and will, I am sure, continue to bedevil TPIMs. This stance has since been supported by the JCHR and noted by the Constitution Committee of this House. It deserves more serious consideration than the Government have so far shown it.

I understand that it will not always suit the Security Service, for which I have the greatest respect, to have law enforcement authorities crawling all over suspects under its control. That no doubt explains in part the strong support that the Security Service has given to the control order regime but it is nothing to the point. The public interest is not always and inevitably to be equated with the policy of the Security Service. Sometimes, Governments need to stand back. It is patently absurd that individuals certified by the most senior figures in government to be active terrorists are not constantly and relentlessly under criminal investigation. I do not accept for one moment that because the material against an individual is presently inadmissible for one reason or another—many identified by my noble friend Lord Howard—the investigation should stop. On the contrary, it should be redoubled and have TPIM conditions attached to it for its duration. Let there be relentless investigation into people who are suspected of terrorist activity but let it be criminal investigation and let TPIMs be tied to that investigation—to facilitate and assist it so that no opportunity is lost to bring violent extremists to justice—in a manner consistent with our rule of law.

[Lord Howard of Lympne]

What would happen under the regime that my noble friend is suggesting if the police and prosecuting authorities came to the conclusion that there was simply no evidence that would justify the continuation of the criminal investigation? Under his proposals, would that mean that the restrictions currently under discussion would inevitably fall?

[Lord Macdonald of River Glaven]

If my noble friend does not mind my saying so, I am not sure that the example that he posits is one that I recollect from my period as DPP. Let us imagine the situation that would exist here: presumably the police or the Security Service would have in their possession something like an intercept that could not be used—for example, a suspect having a conversation with another individual about a plan to place a bomb on the Tube. With respect, that is not the end of an investigation; it is the beginning of one. The investigation that then takes place is into that individual, into the plan as described in the phone call, into the individual he has spoken to and into the associates of all.

The noble Lord will know from his time as Home Secretary that the sorts of powers and abilities that the law enforcement authorities in this country have, which we will not go into here, are considerable and significant. I do not recognise a situation in which a law enforcement investigation stops simply because the deeply incriminating material that you have until that time is the only material that you have and you do not anticipate discovering more.