Terrorism Prevention and Investigation Measures Bill

Lord Macdonald of River Glaven Excerpts

Wednesday 5th October 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, while like other noble Lords I welcome the noble Lord, Lord Henley, to his new role and send my best wishes to the noble Baroness, Lady Browning, I also declare an interest as independent overseer of the Review of Counter-Terrorism and Security Powers. That review was intended, of course, by the Government to achieve a rebalancing between security and freedom where that rebalancing could be achieved in a manner that was consistent with public safety. In many respects, as I suggested to the House upon its publication, I believe the review succeeded in that aim. If its recommendations are implemented, I believe we shall indeed achieve a better balance.

Among the more controversial and pressing topics considered by the review was the question of control orders. It is very well known that these instruments came about not as a result of a predetermined, purposive government policy, but rather in reaction to a number of adverse court decisions outlawing the then Government’s attempts to intern without trial in Belmarsh aliens who were thought to present a risk to national security. The Judicial Committee of this House was unequivocal in ruling this policy to be disproportionate and discriminatory. In relating this I do not seek to underestimate in any way the dilemmas that have faced successive Governments in security matters. I saw many of them very starkly during the five years that I was DPP.

The Government’s response to the Belmarsh case was to create the control order regime. This applied to Britons as well as foreigners, so that it was no longer discriminatory. It fell short of inflicting full imprisonment without charge, prosecution or conviction, contenting itself instead with varying forms of house arrest and other restrictions on travel and association, and bans on the use of communications equipment, such as phones and computers.

Nevertheless, the scheme remained highly controversial, and this was for a number of reasons. First, the regime appeared to permit the state to order sanctions that looked explicitly penal but in the absence of any criminal due process and certainly without any trial ever having taken place. Secondly, these apparently penal sanctions could be imposed without the controlee and his lawyers knowing any more than the gist of the evidence relied upon by the state, and this evidence could be presented in their absence to the court. This seemed obviously and crudely to offend against traditional British norms of justice, precious to so many citizens of the United Kingdom. Thirdly, it was by no means apparent that control orders were actually in any sense entirely protective of the public. Many controlees simply absconded and only one, I think, was ever prosecuted with a substantive terrorist offence. In circumstances where it had apparently been the belief of successive Home Secretaries that all these men were engaged in serious terrorist activity, this omission seemed to represent a grave and continuing failure of public policy. Put simply, if the Home Secretaries were right, as I am sure they were, terrorists were routinely and scandalously escaping justice.

[Lord Reid of Cardowan]

The main reason people could abscond during control orders was not as a result of what the Home Secretaries wanted, which was 24-hour-a-day confinement; it was that, under the Human Rights Act and European Convention on Human Rights, the Home Secretaries were not allowed to authorise such confinement, but had to leave people eight hours to go about their normal business, whatever that was. That was an open invitation to undermine the very essence of the confinement under control and surveillance that was the essential requirement for control orders. It may be right or it may be wrong, but it was the main factor that allowed those under control orders to abscond.

[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.

[Lord Carlile of Berriew]

But my noble friend Lord Howard did not suggest that. Does not my noble friend Lord Macdonald, from his distinguished period of service as Director of Public Prosecutions, not recollect that cases were brought to him in which at that time there was no further prospect of a successful investigation? That is the question that my noble friend Lord Howard is asking. If that is the case, perhaps my noble friend Lord Macdonald would just tell us that the consequence of his view is that, if a TPIM exists after that time, it should cease.

[Lord Macdonald of River Glaven]

Of course one recognises that if an investigation, using all the powers available to the investigating authorities, has continued for a period of time and turned up nothing, under this scheme the TPIM will come to an end—but TPIMs are intended to be time-limited in any event. Under the terms of the Bill, TPIMs will come to an end after two years, so we are not talking about an open-ended system of restrictions. My point is that a system of restrictions applied to criminal investigations is not only more likely to be constitutional and develop broader public support than the system that is currently proposed, but such a system would have attached to it conditions that actively encourage and assist investigation.

[Lord Hunt of Kings Heath]

The noble Lord talked about broader public support, but what evidence does he have of major public concern about the use of control orders? Is there not in fact a great deal of public confidence in them because they protect our security?

[Lord Macdonald of River Glaven]

If the noble Lord does not mind my saying so, that is a somewhat complacent view. There is wide public concern. Obviously there are different views around the country and in different communities, but it would be complacent for the noble Lord to come to the conclusion that there is and has been no broader public concern about control orders.

[Lord Reid of Cardowan]

Would the noble Lord give us one piece of evidence to substantiate that?

[Lord Macdonald of River Glaven]

The level of public debate and discussion is pretty clear evidence. The review itself contains evidence of public meetings and discussions with people who are concerned about the control order regime. I caution noble Lords from the view that there is no concern in the country outside these Houses about these arrangements; I believe that there is.

[Lord Reid of Cardowan]

May I help the noble Lord? I was a Member of Parliament for 23 years. I held a surgery at least once a month and sometimes four times a month. I never had one person come to me and make representations for or against a control order. There is published concern and there are certainly lobby groups, but public concern is entirely different. All the evidence is that the public feel reasonably comfortable with this system as a matter of ensuring their security.

[Lord Macdonald of River Glaven]

I respect the noble Lord’s experience. I am sure from my own experience, conversations and discussions with many people in different parts of the country and different communities when I was DPP that there is and was concern about the control order regime, as there was concern about the pre-charge detention regime. Frankly, noble Lords delude themselves if they seriously suggest that there was no broader concern about measures of this sort; I am sure that there was. Maybe we will not agree about this but, with great respect to noble Lords, I find that view somewhat complacent.

When this subject is debated, everybody agrees that the most important result of any investigation into terrorism is prosecution. If one is considering protecting the public, they are best protected by people being sent to prison for long terms. This is something that we became and are extremely good at in this jurisdiction. We have extremely skilled and able specialist counterterrorism police and prosecutors, and an outstanding record of putting people in prison.

[Lord Gilbert]

We all speak from our own experience; the noble Lord moves in his circles and I moved in mine. I have similar experience to my noble friend Lord Reid, having represented a Labour constituency for 27 years. The attitude there was one of concern over control orders; the noble Lord is absolutely right. The attitude was that they should be tightened up: “Lock them up and throw the key away”.

[Lord Macdonald of River Glaven]

The noble Lord has his experience and I am grateful to him for sharing it with us. I find it very helpful and thank him. Most of the people I spoke to during those years wanted to see these men and women in prison for long terms. That is the answer and the way to protect the public. Find the evidence, prosecute these people and lock them up. The gravest disadvantage of the control order regime was that it presented an obstacle to that in the cases of those individuals who were subject to control orders. That is the purpose of a scheme that would link restrictions to criminal investigations that are more likely to result in criminal prosecutions and convictions.

Sex Offenders Register

Lord Macdonald of River Glaven Excerpts

Thursday 17th March 2011 Lords Chamber

[Baroness Neville-Jones]

My Lords, the Government do not accept that the procedure being proposed is fatuous. Police officers concerned have a much better idea than many others about the nature of the conduct of the defendant, both in prison and later, and they are appropriate people to take a view on this. Moreover, they will do so in consultation with other agencies, as the MAPPA process, in which other specialists will be involved, will be taken into account.

[Lord Macdonald of River Glaven]

Does the Minister acknowledge that there is great disappointment on these Benches too at the tone of the Home Secretary’s Statement and that we had hoped that that sort of language had been left behind by the coalition Government. Can she explain how the Prime Minister’s statement in connection with the same case, that the Government would do the “minimum necessary” to comply with a judgment of the United Kingdom Supreme Court, was calculated to encourage respect for the rule of law?

[Baroness Neville-Jones]

I think that the Government should be judged by their actions. In this instance, they have put forward a reasonable, proportionate and effective proposal to meet the judgment of the court.

Prevention of Terrorism Act 2005 (Continuance in Force of Sections 1 to 9) Order 2011

Lord Macdonald of River Glaven Excerpts

Tuesday 8th March 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the review of counterterrorism and security powers. Like the Joint Committee on Human Rights in its recently published report, I strongly welcome the Government’s conclusion that the current control order regime can and should be repealed, consistent with public safety. It is obviously essential that it is replaced with something that is very different in character and not simply a pale imitation. We shall have to look closely at the legislation that comes forward to ensure that that is not what the Government have in mind. The review has clearly shown that the present regime is inefficient, grants excessive power to the Government, and undermines traditional British norms and respect for the rule of law. This may not be surprising. It was introduced by accident, following a series of court judgments adverse to the last Government. It has been a bad mistake.

I also strongly welcome the Government’s renewed and strengthened commitment, expressed in their response to the review, to the absolute priority of criminal prosecution. Where people are involved in terrorism they must be detected with all the considerable power at the disposal of the state, then prosecuted and locked up. It is not just public confidence that demands this but also our traditional common-law attachment to the supremacy of due process in criminal justice and our courts. The fact is that the evidence gathered by the review has made it clear that the present control order regime acts as a fundamental impediment to prosecution. This is because the restrictions placed upon controlees forbid the very contact and activity that, under proper surveillance and investigation, lead to evidence fit for prosecution. It is also because far too many controlees are simply warehoused under the supervision of the security services, beyond the scrutiny of criminal investigation, and therefore beyond any real possibility of prosecution.

For good reasons, the instincts of the security services are protective rather than prosecutorial in nature but this practice, and the Security Service’s primacy within it, means that some serious terrorist activity remains completely unpunished by criminal law. This is a serious and continuing failure of public policy. Any new scheme introduced by the Government must not replicate this failure. To give reality to the primacy of prosecution, which is the Government’s stated aim, it should clearly become an intrinsic part of any new regime that restrictions placed upon individuals should be linked to a continuing criminal investigation. After all, if the Home Secretary, under the new regime, is to go to the High Court to assert her belief that an individual is involved in acts of terrorism so that she may obtain an order placing restrictions upon that person, it would be quite absurd for there to be no active criminal investigation into the individual in question attendant upon the Home Secretary’s application. Yet that is the position that we are in at the moment.

Of course, if there were always such an investigation in progress, court-approved restrictions mandated for the duration of that investigation, up to a maximum period of two years, would become much more constitutionally acceptable—a form of pre-charge bail. I have no doubt that such a reform would garner broad support for the Government’s new regime, including among those most bitterly critical of the current arrangements. This reform would encourage evidence gathering and therefore increase the likelihood of prosecution. It would bring the new regime much closer to criminal justice, which is an obvious good in itself with all the protections that criminal justice implies for suspects. The Government should urgently reconsider their preliminary view on this issue which, frankly, has been hostile.

Again frankly, any Security Service opposition to intense police activity around controlees should not be a trump card. The public interest is wider than the instincts of the Security Service. In fact, the trump card should always be found in locking up those people who want to wreak violence upon our communities and putting them in prison cells for long, long years. This is the true deterrent and it is also the process that truly protects the public in a way that control orders never have.

There is a separate issue. A further conclusion of the review was that relocation—the practice under which people were forced to move to other parts of the country away from home, family and friends—should be abolished, and that long curfews should go. These were among the most bitterly resented aspects of the old regime and for good reason. They were also the most offensive to our traditional norms, imposed as they were without prosecution let alone conviction, and without the controlees being told any more than the mere gist of the allegations against them. Whoever would have thought that in Britain we would have a form of internal exile without prosecution or conviction?

The Government have now agreed that these provisions are excessive, disproportionate and, unnecessary—and I would add offensive. We do not need them, as the Government have now determined. They intend to abolish relocation and long curfews under their new regime. In those circumstances, they should do so now. How can it be right for this House to be invited to extend powers that the Government themselves have conceded are wrong in principle and excessive in practice, particularly when those powers impact so vividly upon civil liberties? I invite my noble friend to consider a way to proceed that does not include renewal of these quite excessive and, as we now know, unnecessary intrusions. Those subjected to them should not have to labour under these oppressive measures any longer. There can be no conceivable public interest in obliging them to do so when the measures themselves are serving no useful purpose.

Finally, it will be critical for this House and the other place to examine with great care the legislative proposals that come forward. It is always tempting for the bad old stuff to slip back into a piece of draft legislation. We must not end up in the position of approving a system later this year or early next year which is a form, as some people have put it, of “control order light”. We need real reform in this area. If there are to be restrictions, they must be coterminous with criminal investigation. There must be no restrictions which destroy the ability of the state to obtain evidence against people who might have been involved in terrorism, which is precisely the effect of the present regime. It has failed and must stop.

[Baroness Kennedy of The Shaws]

My Lords, I will be brief. First, I suspect I am one of few people in the House who has been involved in some of these cases in the courts. I have seen them at close quarters.

Many noble Lords will also remember that I was one of those on the Labour Benches who strongly opposed the Labour Government introducing control orders. I opposed them then and ever since. I welcomed the fact that noble Lords on the other side of the House, whose faces are familiar, all went through the Lobbies with me opposing control orders. Now they are sitting in government and I want to remind them of the principled stand that they all took on control orders. It is easy, once in government, to hear poured into their ears the position taken by the security services that somehow this is the only way forward. With regard to the issue of dealing with persons suspected of links with terrorism where it would be difficult to bring them to trial, I have always advocated that surveillance, the use of intercept and so on can be done, but without interfering with liberty in the excessive way that control orders have meant. I am saddened and disappointed that the siren voices of the security services have persuaded the Government that something not very different from control orders should be the way forward. I am sure that I will be one of the people who take part in the debates when the legislation is presented to this House, and I will rigorously test some of the suggestions that have been made.

I strongly support what has been said by the noble and learned Lord, Lord Lloyd, and indeed the noble Lord, Lord Macdonald: given the principled position that the Government are going to do away with control orders, and even if the position is that something else will come in of a lesser order but somewhat similar, it is quite wrong at this moment to keep the thing that they have criticised for so long with regard to the eight people currently subject to the level of suspicion that we have heard about. It cannot be right to continue that until the end of this year. At the very least, the Government should be reducing the constraints upon liberty to the standard that they are intending to introduce, and then that can be revisited in December. However, it cannot be right for them to continue with control orders when they so bitterly opposed their existence once they had been introduced by new Labour in government. I ask that, in the spirit not just of decency but of appropriateness, the cases that we have spoken about and the noble and learned Lord, Lord Lloyd, mentioned be revisited.

I reiterate what my noble friend Lord Judd has said: one of the jewels in our crown, one of the great limbs of our democracy, is the way in which we interpret the rule of law. I am a proud champion of the common law. We have always believed that due process was vital before we in any way encroached upon the liberty of human beings. That is a proud tradition here and it is a sort of ceding to the terrorists if you abandon those values, which are so precious in our society. I strongly urge that we do not go down the road of introducing something similar, because it is a poison in the system. It is a way of saying that it was not just a temporary measure; somehow we have bought into this idea, and an alternative to the things that we have always believed in can now be introduced. I urge that we think again about that.

I was interested to hear that the noble Lord, Lord Macdonald, said that there are alternatives, and I hope that in the months to come the Government will look again at what they are intending to do.

Sex Offenders Register

Lord Macdonald of River Glaven Excerpts

Wednesday 16th February 2011 Lords Chamber

[Baroness Neville-Jones]

The noble Lord made his point several ways round. The Government are acting in conformity with the principle that they must be in conformity with the law, which is why they have brought in this amendment to the law. We perfectly well recognise that the courts interpret the law and are acting on that principle.

[Lord Macdonald of River Glaven]

Will my noble friend acknowledge that there is great disappointment on these Benches, too, at the tone of this Statement? Some of us had hoped that the days when these sorts of Statements would be made about the judges and the courts had gone with the new Government, and are very disappointed to see that, perhaps, they have not. Why do the Government appear to believe that, with regard to appeals against the inclusion on the sex register, the police are better placed to do justice than the Queen’s courts?

[Baroness Neville-Jones]

My Lords, I think that I explained in response to an earlier question that it is very hard to judge the merits with these particular offences, particularly in relation to expectation about future conduct. Therefore, we feel that those closest to the individuals or offenders concerned, who have been monitoring their conduct, are best placed to take an informed view and come to an informed decision about the balance that needs to be struck thereafter between the freedoms that can be accorded to the individual and the rights of the public to safety. This is a very practical view of how to come to the best decision possible.

Counterterrorism Review

Lord Macdonald of River Glaven Excerpts

Wednesday 26th January 2011 Lords Chamber

[Lord Macdonald of River Glaven]

My Lords, I declare an interest as the independent overseer of the counterterrorism and security powers review. Would the Minister agree that the review has made good progress in meeting its objectives of recommendations that, if implemented, would roll back state power consistent with public safety, and that on stop and search, surveillance powers, pre-charge detention, the removal of relocation and curfews, and house arrest powers, important reforms are signalled?

Would she also acknowledge that more work needs to be done on the precise circumstances in which restrictions may be placed on those who are not charged, prosecuted or convicted of crime, and that some quite tough decisions will have to be made before legislation is brought before this House?

Finally, will she indicate whether the Government will consider the proposal in my report that any regime of restrictions should be much more closely linked to a continuing criminal investigation so that the primacy of prosecution is protected and that prosecution is the prime aim of public policy in this area?

[Baroness Neville-Jones]

I take this opportunity to reiterate my thanks to the noble Lord for his contribution, which is very significant to the work of the review. He makes some important points and has outlined more eloquently than I have the effect of reducing the measures in relation to individuals that constitute a new balance between public protection and the rights of the individual. We believe, however, as the noble Lord acknowledges himself, that it remains necessary that measures of this kind are available in the interest of public protection. He is right that there is more work to be done on some of the detail, and as we work through the legislation and subsequently its implementation, I am sure that more detail will come into effect.

On the question of the regime of restrictions and the need for a closer link to criminal investigation, the Government share the view that it is important to increase the possibility within this regime of bringing successful prosecution. We are mindful of that being the proper goal. As the Home Secretary said in her Statement, terrorists should be behind bars in a prison cell. At the same time we draw back from the notion that one would not be able to introduce a measure of this kind in the absence of a close link to and a realistic prospect of being able to introduce a prosecution. We do not wish, therefore, to claim that we can do that, given that it might not be an honest claim. What I can say on the part of the Government is that we will try very hard to ensure that the maximum possibility for bringing prosecution in any given instance is a clear objective.

Police: Protest Groups

Lord Macdonald of River Glaven Excerpts

Wednesday 12th January 2011 Lords Chamber

[Baroness Neville-Jones]

RIPA—the Regulation of Investigatory Powers Act—specifies how that should be done. The authorisation has to be by a senior officer. There has to be a regular instruction and record kept and there are various other procedures in the Act which are designed to manage and control the operation. I do not think that it is the framework that is lacking.

[Lord Macdonald of River Glaven]

My Lords, does the Minister agree that undercover policing is an essential resource that has resulted in many dangerous criminals and criminal gangs being brought to justice—thanks, in large part, to the courage of the individuals involved in that work—and that it would therefore be an enormous pity if public confidence in that technique were to be diminished or undermined? In those circumstances, does she agree that undercover policing needs to be firmly controlled and used only in the most appropriate cases? Although she does not want to comment on individual cases, in general terms can she think of any circumstances in which it would be appropriate for an undercover police officer to be embedded for seven years among a group of climate change campaigners?

[Baroness Neville-Jones]

I think that there is widespread agreement in the House with what the noble Lord has said, for which I thank him. I do not want to comment on the individual case, but clearly the length of time would need to be looked at.