Terrorism Prevention and Investigation Measures Bill

Debate between Lord Macdonald of River Glaven and Lord Reid of Cardowan

Wednesday 5th October 2011 Lords Chamber

[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.

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[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.

--- Later in debate ---

[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.