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.