Welcome to both of you.
You will have heard the evidence given by the previous witnesses. I want to pursue the conditions that can be put on a TPIM notice, particularly with regard to relocation conditions. Given Mr Osborne’s evidence, that appeared to be giving him some cause for concern, both because of the resources that he will need and because of his ability to manage the risk to the public if the ability to use relocation is denied. You will have heard that nine of the 12 current orders contain a relocation clause. From the evidence I have heard, those clauses have been fundamental to the difficult process of managing risk. I would like the view from your different perspectives on managing that risk and whether this is a matter, as I increasingly see it, of grave concern.
Lord Carlile: It is not for me to set homework for the Committee, but I would strongly recommend that you read the decision of Mr Justice Simon in the case of CD v. the Secretary of State for the Home Department, on which he gave judgment on 20 May. That was a case in which the Government applied for a control order with relocation. In his open judgment, the judge gave a cogent analysis in which he set out the reasons for, and the advantage and necessity of, relocation in that case. Control orders inevitably provide greater protection to the public than the suggested TPIM regime because, among other things, they allow for relocation.
Lord Howard: I understand from what I read in the newspapers that such decisions, which involve striking a balance between different considerations, have been the subject of negotiations within the coalition. We have a coalition Government and there is no single absolutely correct answer to where you draw the line and strike that balance. If you ask me my personal view, however, I would have preferred the relocation provisions to have remained.
Is the time scale for the loss of the relocation provisions also a matter of concern? We heard from our previous witnesses that if those nine orders are to be renewed, they might well not contain relocation provisions. The nine people might come back to live in London in December just before the Olympics, which would be a huge challenge for not only the police, but the security services. I would welcome your view of the toxic combination of an increased threat at a time when the eyes of the world are upon us and when al-Qaeda, in particular, would want to see a spectacular assault. The coming together of those factors raises the risk.
Lord Carlile: If an empirical decision has been made that somebody should be relocated and that decision has been upheld by the courts, there is generally a good reason for it. The risk is increased if one person has the relocation condition removed. If nine people have relocation conditions removed and therefore are all able to move closer either to one another, or to their contact to whom they would wish to be close, plainly you are right that there is an increased risk. I do not want to exaggerate that, because they do not all come from London anyway, but some of them certainly do.
Lord Howard: You heard evidence from the police that this would lead to an increased risk, and that the increased resource that is going to be made available would mitigate that risk. The police evidence was not that that additional risk would be eliminated. There is a difference between elimination and mitigation.
Lord Carlile: You have to be realistic about the cost of the additional resource. As those who are or have been Ministers know, that cost is very large. Varying estimates have been made about the cost of 24/7 surveillance, but it has been estimated as going as high as £18 million per year, per person, whereas the last time I looked at the estimated figures, the cost of a control order was something like £1.8 million per person. Of course, we do not value civil liberties in money, but we do look at the money as part of the proportionality issue, as any court and any Government should.
Me neither. I have no idea what has gone on.
These are very difficult decisions for whichever politician makes them. However, do you think it is right that when the Secretary of State is deciding whether to make an order, the starting point should be the protection of the public, the fundamental importance of national security and the practical measures to mitigate that risk, rather than any political negotiation?
Lord Howard: Of course, I agree that those other considerations should be in the mind of the Secretary of State, but we live in a parliamentary democracy and the Secretary of State is a member of a coalition Government, so what the Secretary of State brings forward to meet the important considerations that you have identified will inevitably be determined by discussions in government. I suppose that that is just as the position would have been determined by discussions within a single-party Government in which people might have different views about where precisely the balance should be struck.
Lord Carlile, in your role as the reviewer, you were privy to information that is not available to all of us. Given your detailed knowledge of the cases that give rise to control orders, how would you rate the importance of the relocation condition compared with the other conditions that might have been imposed? What prominence would you give to relocation?
Lord Carlile: There is not a relocation condition in every case, of course, and the courts have shown themselves to be hesitant to confirm relocation conditions. It probably follows from that that in the cases in which there is a relocation condition, that is important and of great value. As I have already said, the recent judgment of Mr Justice Simon gives a very clear example of why.
We have heard that about 15% of those who have been given control orders escaped from them, and we still do not know where many of them are. Would you agree that that suggests that the whole system has a fundamental problem, and that it would be better to know where someone is, even if that place is London, than to lose track of them completely?
Lord Howard: You could achieve that by detaining them in custody, which was the regime that preceded control orders. When that system was changed, as a result of the decisions of the courts in order to take into account the Human Rights Act and civil liberty considerations, we ended up with a control order system that, in the respect that you have identified, Dr Huppert, is less effective in protecting the security of the public, and indeed in protecting what I regard as the greatest human right and civil liberty of all: the ability of a citizen to walk down the street and go about his business without being at risk of a terrorist bomb. The protection was introduced when the control order system was introduced.
We would all agree that it would be better to have these people convicted and locked up, which brings me to the other issue that I asked about earlier: the evidence—
Lord Carlile: May I answer the previous question? I agree with Lord Howard, but if that question were to be entirely fair, you should have included a reference to when the last abscondence took place, because that was several years ago. The fact is that there has been no abscondence for a number of years, and given my detailed experience of this territory, I think that one is very unlikely. The police and others have been extremely assiduous to ensure that abscondences do not take place, so the question is now a theoretical one.
We may disagree on that.
To continue the half sentence that I had got through, there is an evidence gap between what is known and what can be used to prosecute, so do either of you have suggestions about how we can close that evidence gap? Lord Howard, you are working on using intercept evidence, so are there any other suggestions that could help us to move towards prosecutions?
Lord Howard: I wish there were, because we all agree that the ideal solution is to prosecute people and convict them if they are guilty. That is what everybody would prefer, but a great deal of the material on which the authorities are able to assess the risk that any particular individual may pose is of a different nature altogether from that which can be used as evidence in court.
As you mentioned, I am a member of the Privy Counsellors committee that is considering the question of admitting intercept material as evidence, and I have been from some time—I was originally appointed by the Home Secretary in the previous Government and have remained a member under this Administration. We are still deliberating and I cannot prejudge the outcome of our deliberations—it would be wrong for me to try to do so—but my position is exactly the same as that which was put to this Committee by the Director of Public Prosecutions. I am in favour, in principle, of allowing intercept material to be admitted in evidence, and I have made speeches to that effect. Before I joined the committee, I was strongly in favour of it, but I am afraid that the caveats that the DPP entered that qualified his in-principle view are formidable. Overcoming the difficulties that are contained in those caveats is an extremely challenging task.
Lord Howard: The previous committee, before I was a member, produced a report that attempted to analyse in some detail the extent to which intercept evidence would have made a difference to the imposition of control orders. I am summarising, but the general sense of its conclusions was that it would make a relatively small difference in relatively few cases. I am a little sceptical of that for the reasons that the current DPP gave in his evidence to you a few moments ago. He said that it is quite difficult to make that analysis, because you are looking at an intercept regime that does not operate on the basis that the output will be used in evidence in a criminal trial, so it is a very hypothetical exercise. It may have been a bit over simplistic in its analysis, but that was the conclusion that the previous committee reached.
Very quickly—you have talked about the relocation issues, and both of you spoke very strongly about the difference between control orders and TPIMS. Are we really able to say of anyone currently under a control order that, with the relocation aspect that can be used by the courts in certain cases, we can be aware of all their movements, and we can more or less guarantee that they cannot participate in a preparation for a terrorist attack? I do not believe that that is true. Even if we move them into a location where we can better keep an eye on them, which is the thrust of this idea, I do not believe that we can say, “Yes, we can keep track of them,” to the point where we are satisfied that they will not participate in such activity. With today’s technology and communications, can we really guarantee that?
Lord Carlile: As independent reviewer, I visited some controlees in the homes to which they had been relocated. I attended quite a number of meetings of the control order review group—CORG—at which these issues were discussed. I read the intelligence—I am not saying that I read every word of it, but I read enough to know what it contained—in every control order case, from the beginning until 21 February this year. I think that surveillance on people who have been relocated is very successful and very strong. It is done by a panoply of agencies. It includes, of course, electronic tags, so if the controlee moves from the area which he is permitted to be in at any given time, that is picked up by the electronic tags, which work extremely well.
Can I just answer your earlier question, if I may, about intercept evidence? I asked myself every year, when I reported on the control order regime, in relation to each case: “If intercept evidence had been available, is it more likely that this case would have been prosecuted?” In every single instance, my answer was “No, it was not.”
Indeed, I have some difficulties with Lord Macdonald’s concept of TPIMs as an investigative measure. The investigation is over by the time the control order is made. It may be that, when it is reconsidered in a year’s time, further investigation will have taken place; but, again, if the control order is renewed, the investigation is over.
In relation to something that was asked of the previous witnesses, I wanted to emphasise this: when I started reviewing control orders, I thought that the letters that came from chief police officers informing the Home Secretary that prosecution was not possible, were rather lacking in detail, and were not robust. Certainly, in my last two to three years as independent reviewer, I was very satisfied that complete efforts had been made to ensure that an investigation could take place, and it was not possible—hence a control order.
Lord Howard, you neatly elided civil liberties and the Human Rights Act in your answer. Civil liberties are granted by the Crown in Parliament; the Human Rights Act is interpreted by judges. You spoke about the effect of the Human Rights Act when it was introduced on situations such as this. Can I ask both of you whether you think that any provision within TPIMs will require derogation from the Human Rights Act, or whether it is liable to successful challenge?
Lord Howard: I have not practised law for over 25 years, so I hesitate to answer that question. Lord Carlile is a practising lawyer, and there are many on your Committee. I would say that, given the tendency of the judiciary to become significantly more interventionist in these matters, that is not a risk which could be excluded.
The TPIM regime has been called “mini-control orders”. What are the essential elements of the control orders that need to be retained in this new system?
Lord Howard: I am not a critic of the Bill. I think that the commitment to review the control order system, which was in the Conservative manifesto at the election, was good and proper. It is right that the control order regime should be reviewed. In some respects, the Bill, with its change in the burden of proof and in the scrutiny provisions that are contained within, is an improvement over the control order system. I am by no means a die-in-the-last-ditch control order person, and in a significant number of ways, this regime is superior to the control order regime. Probably my only reservation is the one that I clearly stated in answer to an earlier question, which is the absence of provision in the Bill for relocation.
Lord Carlile: I agree broadly, but I have a concern about the genesis of the Bill. It arose from coalition politics—I am aware of the process that occurred—and it is a compromise. As I said in my last report, and in the note that I sent to the Committee, it is the sufficient lowest common multiple, and it will do. However, it does not provide as much public protection as control orders, and it would be foolish to ignore that fact. There are certain improvements, however, as Lord Howard has said. I entirely agree with him about the burden of proof. I can live with this Bill, subject only to a very careful consideration, as I am sure that the Committee will provide, of relocation.
To move on, do you think that there are weaknesses in the new Bill in relation to parliamentary scrutiny? Lord Carlile, as independent reviewer, you had access to information that is not available to the Committee for security reasons. In our deliberations, do you think that it would be helpful for Opposition politicians to be briefed to the level of Ministers in relation to having information that would help us to do the job properly?
Lord Carlile: Yes, looking back at what happened following the election, I came to the clear view that it was a great pity that some Opposition spokesmen had not been briefed before the election on a suitable basis—and I do not regard a Privy Council basis as adequate—on at least some of the secret material that existed in relation to controlees. My suggestion was that the Opposition should have a couple of direct developed, vetted spokespeople, who may not necessarily be Front Benchers. They could be nominated by the party and would be able to advise it, on an appropriate basis, of the real facts. Such people would be trusted and relied on by their party to give the basis for policy decisions. For example, my party made a serious mistake in committing itself to the abolition of control orders. It made that mistake understandably, however, because it did not have the information. We should be able to run our political establishment rather more smoothly and on a better informed basis than that.
Lord Carlile, I think that you would accept that the Bill’s measures are part of a broader context, given the information that we have heard from the police this morning on the additional funds that would be available and on the use of surveillance techniques. I think that you said that the Bill should be seen as adopting a new approach to public protection, and you have talked about an acceptable balance of risk against other considerations. Do you want to expand on what you meant by those comments at that time?
Lord Carlile: I could expand on that at great length, but I will not. My headline would be, “This is all art, not science”, and we learn as we go along. It is totally unfair for this to be part of a big politics, in which the parties bash one another on the basis that they have got it hopelessly wrong. We were bound to make mistakes when we embarked, at the time of 9/11, on the road that we are now on, and the picture is evolving. The art is to have the right balance for the time being and change that balance if circumstances dictate or permit it. I think if I were to say more in answer to the breadth of your question we would embark on a long philosophical debate. If there are any specific issues I would be happy to answer them.
It would be helpful for the Committee if you commented—and Lord Howard may also wish to comment—on suggestions that there is no need for TPIMs and that we can do things in other ways. The two of you have looked at these issues very carefully in your respective ways over the years. You might perhaps comment on those alternatives. You talked about intercept as evidence, we have deportation with assurances, and there are other investigatory processes that might bring things to a prosecution, such as police bail. What are your thoughts on those alternatives, and what has led you to the view that some sort of preventive, protective measure is still required?
Lord Howard: I think it is the point that I made earlier in my evidence. The material which is available to the authorities on which they are able to assess the extent to which any particular individual poses a risk to the security of the people of this country is, to a very large extent, not material which can be adduced as evidence in a court of law. That is a highly inconvenient fact, because we would all like the matter to be tested in the normal way in our courts. All of us want that to happen, but unfortunately it is a fact, and it is from that fact that the need for a regime of this kind arises.
Lord Carlile: You raise three particular items, and they are all very interesting. Police bail is not really relevant to this Bill, but on the 14 day/28 day debate I think it is relevant, and it would be useful in my view to have a system of bail judicially supervised. Bail conditions can be very stringent. Anyone who has been in a criminal court has seen conditions much more stringent than those imposed by a control order. I have done it myself as a recorder.
We have already discussed intercept evidence. An important point that needs to be borne in mind with intercept is about what happens in other countries. Comparisons are often made between, say, the United Kingdom and France, Italy or Germany. They are completely misleading comparisons. We have an adversarial system in this country, and the rules of disclosure of material to the individual concerned are far more stringent than in any of the other countries with which comparisons are made. The juge d’instruction in France can look at secret material and never reveal to anybody that he has looked at it, so there is no question of it being answered, whether by a special advocate or anybody else.
Deportation with assurances has concerned me for years. This is where the United Kingdom courts have been a little too keen to apply the Human Rights Act and the convention in a very strict way. It has meant that terrorists are at large in this country, some in custody, who should not be in this country at all. It is one of the issues that the Equality and Human Rights Commission should address. Recently the Council of Europe and the European Court of Human Rights have addressed this issue in general terms. In a line, the margin of appreciation needs to be a good deal wider on this point.
If I could take you both back to the issue of parliamentary scrutiny. The control orders regime was up for renewal in Parliament on an annual basis. The current regime in the Bill, once passed, is permanent. Do you think that annual review by Parliament is important, and would you have retained it in this Bill?
Lord Carlile: I would not retain annual renewal. The reality is that it has been renewed from year to year, and annual renewal has been a bit of a fiction, to be frank. I think that Parliament should have the courage of its convictions and decide whether it wants a regime like this or not. It can always be repealed. Heaven knows, if you are a legal practitioner like me, you know exactly how many criminal justice and police Bills there are. There is an avalanche of them, and there are plenty of opportunities to change the law.
I repeat the question I asked Keir Starmer earlier. Do you think that there is anything in the Bill that will allow more suspects to be brought to trial? If there is not, can you think of any measures that have not already been debated, such as intercept, that could be brought into play?
Lord Howard: No and no, I am very sorry to say. That should not be taken to mean that I am prejudging the outcome of the Privy Councillors committee that is looking at the admissibility of intercept material—we have not reached a conclusion yet. However, as things stand, I do not think that anything in the Bill will aid investigation. As things stand, there is no other measure that I can think of that will do so.
Lord Carlile: No to the first question—I agree with the Lord Howard. As for the second question, maybe. A lot of work has been done on technical activity that may take place. If that technical activity improves and is civil liberties-compliant, it may become easier to collect evidence that will lead to prosecutions, but that is a pretty speculative answer.
Lord Howard: I gave some examples. I think the difference in the burden of proof is an improvement. There are a number of things—they are not major things. It is an improvement that the measures that can be taken are set out in the Bill; the level of scrutiny and so on is also an improvement. As a whole, the Bill is an improvement. Indeed, I went on record as supporting it when its provisions were first announced.
We have already referred to it in passing, but it is clear that the existing control order regime has been the subject of quite significant judicial interpretation. Do you think the way in which provisions in the new Bill are drafted will—I dare not say remove—reduce any potential for future judicial interpretation? Is this a clearer exposition of a regime than the previous control order regime?
Lord Carlile: As a very experienced lawyer, you will know that our learned friends will find something. I would not predict less litigation than hitherto. There may be less room for challenge to measures, for the simple reason that there will be fewer measures. On the special advocate regime—I know special advocates are going to give evidence to you—my judgment, having read much of the proceedings and the judgments in every single control order case between the start and 21 February 2011, when I ceased to be independent reviewer, is that the special advocates have been extremely effective. I am not in the least surprised that our Canadian colleagues, who have a largely similar system of law, have applied the special advocate system in certain respects. The same applies in Australia.
Both of you mentioned the alterations in the burden of proof. One of you is a practising lawyer and one is a very distinguished lawyer and QC. What is the difference between reasonable suspicion and reasonable belief, both in practical terms and in terms of legal analysis?
Lord Carlile: There is some law on this, but I have not brought it with me. It goes something like: reasonable suspicion is a suspicion founded on reason that something may be so; reasonable belief is a belief that it is so. That has been expounded much more clearly in a number of cases which I am sure can be provided by your advisers. It is a step change. It sounds like lawyers dancing on the head of a pin, I know, but it is not. It is a step change and quite a significant one. May I just add that, if you look at the cases, the judges who have considered control order cases have always applied a fairly high standard of proof?
If I can move on to a related topic, the Government’s position is that there is nothing in the Bill that requires derogation from the European convention. Do you both agree?
Lord Carlile: Yes, the only thing about which there has ever been a risk of derogation is derogating control orders. The previous Government, very sensibly—particularly because I had said so in my reports—never tried to impose a derogated control order. It would have been extremely foolish to have tried. I see no risk of derogation in the Bill.
Does that mean you also both see it as an advantage in the Bill that there is no provision for a TPIM which derogates from the ECHR to be imposed?
Lord Carlile: I think so, yes. We do not know what is going to happen. You have been talking to other witnesses about the Olympic games. I am confident that the Olympic games will be a very peaceable event, well policed and a great event for the nation. However, something could happen, either there or elsewhere. I would not write off completely the possibility that at some point Parliament may decide that we need to derogate, because of something that happens in the terrorism piece. Being absolutely unequivocal about it is, I fear, a little dangerous. However, I am happy to see that it is not in this Bill.
Lord Carlile, may I return to a comment you made earlier about compromise, which I think is interesting? You have eminently surveyed the various compromises made by the previous Government, first with the judiciary and also with their own Back Benches. How is this compromise any different from those?
Lord Carlile: A coalition is a quite different structure from the other Governments we have had, certainly in my political life. There is a level of intense negotiation that takes place between Ministers within the coalition. All I said earlier was that I am aware of extremely intensive negotiation between various parts of the coalition on what should appear in the counter-terrorism review, of which this is part—as opposed, for example, to the Prevent review, over which I had independent oversight. If an entirely empirical view had been taken of this territory, probably we would have remained with control orders, albeit with some changes, such as the standard of proof. The compromises were a necessary part of obtaining an agreement in the coalition. There is nothing wrong with that, but it is a factual observation one has to take into account in considering the Bill. It has not been produced by the Law Commission; it has been produced by the coalition, and that is a different process.
Thank you, Mr Scott, and thank you to our two witnesses. I want to return the costs. Lord Carlile, you talked about the costs in relation to surveillance, and I copied the figures: £1.8 million per person on control orders and £18 million—
Lord Carlile: I do not claim accuracy for the higher figure, because there have been various estimates, between £11 million and £18 million. An estimate I was given in the past two years was that you would need 60 whole-time equivalents for 24/7 surveillance of an individual, because you have to cover shifts, sickness and all the rest of it. Plus you need a panoply of electronic devices and opportunities. Sometimes that is very difficult to achieve. A simple example is that, ideally, you might want a room in a house across the street from which you can view someone’s premises, but it is quite difficult to persuade people to let you occupy a room to spy on their neighbour. It may be a perfectly reasonable thing to do, but it is perfectly reasonable to refuse. That adds to the cost.
When Mr Osborne talked about the bid that the police put in for the costs, he said that it would take up to 12 months to train the extra surveillance and other assets that would be required. The likelihood of the Bill being in place by the end of the year concerns many members of the Committee. Do you think there is room for the Government to look at a transitional arrangement for when the power comes into place, because it will take so much time to deal with the assets and the development and training that might take place?
Lord Carlile, you will be aware that the Bill sets out a two-year time period for the operation of TPIMs, unless there is new evidence of terrorist-related activity that satisfies the tests set out in the Bill. I believe you think that strikes the right balance, but will you tell the Committee your thoughts on the two-year time limit?
Lord Carlile: I changed my mind about that during the period in which I was independent reviewer. At one stage, I recommended that there should be a two-year limit, full stop, but I was persuaded on the basis of the information put before me, including intelligence information, that there is a small residue of people about whom it may be shown, even after two years on a control order, that they represent a substantial risk to national security. I think such cases will be very few in number, but provision should be made for them, so I have been persuaded that that is a legitimate provision.
In light of the surveillance issues you have looked at and the comments that you heard earlier—I think you said in your earlier commentary that there is a balance to be struck between the controls and surveillance and other measures that may be adopted by the police to counterbalance and mitigate risk—could you comment further on that and on the points that you have raised about the ability to balance risk?
Lord Carlile: It is very important to balance what the police can do against what the Home Secretary and the courts can do. Generally speaking, we do not wish to impose movement and activity restrictions on citizens unless it is absolutely necessary. The proposed TPIMs regime and the control orders regime strike as near as one can get to the right balance.
I want to add that I have had a great deal of dealings with officials over a period of nearly 10 years, and I do not think anyone should get the idea that officials in the Home Office or the Northern Ireland Office, where Mr Goggins had a very distinguished career, are sloppy about this in any way. As a Minister, you know that, on the basis of the information they have, which may change by the time a matter gets to court, officials are assiduous in ensuring that nothing disproportionate is done. I commend them for that consistent effort over the years.
On the final page of the Government’s counter-terrorism review there is an acknowledgement that there may be exceptional circumstances in which the measures in the Bill would not be sufficient. The Government talk about draft legislation which, presumably, would be similar to the draft legislation to extend pre-charge detention beyond 14 days. I would be interested to hear brief comments from each of you on the difficulties of such legislation. Should it not be in the Bill as an additional power, perhaps to a higher threshold?
Lord Howard: I do not think there is any single absolutely correct answer to that question. It is one of those difficult judgments that Governments have to make. I can see advantage in having draft legislation separate from the Bill, because you do not know what circumstances would make the implementation of such legislation necessary. A Government have to satisfy a higher standard when they put measures into a piece of legislation that is going on the statute book. There would be a greater pressure on the Government to identify, even hypothetically, the kind of circumstances in which it would be appropriate to implement such measures. On balance, although it is pretty difficult—