Examination of Witnesses

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 4:00 pm on 21 June 2011.

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Lord Macdonald of River Glaven, Angus McCullough and Judith Farbey gave evidence.

Photo of Martin Caton Martin Caton Labour, Gower 12:00, 21 June 2011

Welcome to our sitting. Please will you introduce yourselves to the Committee?

Lord Macdonald: I am Ken Macdonald.

Judith Farbey: I am Judith Farbey.

Angus McCullough: And I am Angus McCullough.

Photo of Martin Caton Martin Caton Labour, Gower

Lovely brief introductions. Thank you very much.

Q 8888

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

It is a pleasure to serve under your chairmanship, Mr Caton.

I shall start with a general question to all three of you. What are your comments on the legislation and how it compares with what you would like?

Lord Macdonald: Do you mean the Bill?

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

The proposed legislation we are looking at.

Lord Macdonald: The significant changes from the old control order regime that are clearest to me are, first, the abolition of relocation—whether you think it was good or bad, it was certainly the most draconian measure under the old regime, and it is gone. Secondly, there is the fact that long curfews—daytime curfews in particular—have gone, which I suppose were the second most draconian aspect of the old legislation. Thirdly, and equally significantly, is the two-year limit on the period of the measure in the absence of fresh evidence. Personally, I would like the whole regime to be tied in to the criminal justice system so that the measures can be applied only when there is a current investigation into an individual. If that were the case, the measures would be akin to, if not exactly the same as, bail conditions, and would be constitutionally unobjectionable. In those circumstances, the measures would no doubt be designed to encourage investigation and the gathering of evidence,  rather than impeding it, as I think the old control orders tended to. I think that my successor as Director of Public Prosecutions has tended to agree with that view.

Judith Farbey: Speaking from the perspective of a special advocate, I feel that the special advocate’s role under the new Bill will be very similar, if not identical, to that under the Prevention of Terrorism Act 2005. We primarily make submissions for the disclosure of secret evidence into the open part of the case. During substantive hearings, we step into the shoes—if I can put it that way—of the controlled person’s barrister when they are turned out of the courtroom because the session is going into secret. I feel very strongly that that role will remain under the new regime and that I will basically carry out my current tasks under that regime although, of course, much is left to the details of rules.

Angus McCullough: I agree with Judith. From the perspective of a special advocate, the striking thing about this is that it is identical in terms of the closed proceedings and procedure to the control order regime that we have become used to.

Q 89

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Lord Macdonald, I have tabled amendments that look towards police bail, but I will not ask you about them because you might not have looked at them.

On a broader question to all three of you, the Government argue that there is no provision within the terrorism protection and investigation measure regime that requires derogation from the European convention on human rights, and that the whole Bill would be not only Human Rights Act-compatible, but significantly more so than the control order regime. Do you agree with that and are there any areas in which you have particular reservations, such as article 6?

Judith Farbey: I feel—Angus and I have put in our written view—that there will be no greater guarantee under the Bill than under the current legislation that the TPIM notice will satisfy article 6 in terms of disclosure to the person affected. Therefore, we may well go through the same sort of exercise under this Bill that we go through with the current administrative court under the existing regime. Clearly, the measures that can be imposed on a person subject to them are different from under the current Bill, but in terms of article 6 in particular, which is really where our expertise as a special advocate lies, I do not think that we are looking at a vista where courts will necessarily spend a lot less time on article 6 arguments.

Lord Macdonald: I am sure that that is right. I think the sort of litigation that we have seen in recent years is almost bound to continue. Any regime that allows inhibitions on liberty to be enacted in the absence of a conventional trial, as we would understand it, is bound to engage arguments around article 6. I would certainly expect those to continue, and the courts will have to continue to focus on that. I do not think that this Bill will change that at all.

Angus McCullough: I have a concern that the wording of the Bill runs the risk of introducing language that cannot be applied literally in a wide variety of cases. The House of Lords, in the AF (No. 3) case, has said that the literal language of the 2005 Act cannot be applied because in many cases it leads to a breach of article 6 fair trial rights. Looking at schedule 4 to the Bill, it appears to be envisaged that exactly the same or  very similar words are going to be used, which again will not be capable in practice of being interpreted as meaning what they say. That is not a great way of going about passing legislation; it is liable to lead to confusion.

For my part, I would have preferred to have seen an attempt by the draftsmen to recognise the state of the law as it has been declared by the House of Lords in AF (No. 3), with a view to requiring the Secretary of State to acknowledge the article 6 duty at the outset of proceedings, rather than simply leaving it for the court and the special advocate to address some way down the line. In practice, what has happened in control order proceedings is that the control order may have been in place for many months—even years—before the final, substantive hearing, or before the disclosure stage is reached. The Secretary of State, when it is put to her—as it has frequently been, and is at the moment—then decides that the public interest in maintaining the control order is not outweighed by the harm to the public interest that would be caused by giving the required disclosure. It is unsatisfactory to my mind that a control order would thereby have been in place for an extended period without it actually being justified through giving the level of disclosure required. Exactly the same would appear to be envisaged under the TPIM regime, although of course we have not seen the underlying rules of procedure yet.

Q 90

Photo of Bob Stewart Bob Stewart Conservative, Beckenham

Special advocates: there is not a big difference, as I understand it, in the way you have to operate. What is your considered opinion with regard to whether the public would be safer under a control order regime or under a TPIM regime?

Angus McCullough: I would be rather reticent about answering that. I do not think that it really falls within our scope of expertise. You have had other witnesses who are much better qualified and you will be hearing other views after ours. So, for my part, I would respectfully—

Lord Macdonald: I think the public are safest when terrorists are in prison, preferably serving as long a sentence as possible, which is something we achieved with scores of people in recent years—far more successfully than any other fair trial country. We can prosecute people and lock them up on good sound evidence following fair trials.

If we are going to have a regime that controls people, it should be linked as closely as possible into criminal justice, because criminal justice is the long-term answer. If you put someone on a TPIM, they are on it for two years and then they are out—that is it. If you get evidence against them and prosecute them, you can lock them up for 20, 30 or 40 years, and that is what we should be doing. I am strongly opposed to any regime that impedes the ability of police and prosecutors to gather evidence and to lock these people up. If you are going to have controls, make them akin to bail conditions, which encourage the gathering of evidence rather than frustrate it.

I do not have a problem with any measure in the Bill so long as it is allied to a due-process justice system, and as long as no measure operates in a way that impedes  the gathering of evidence. If you warehouse people under the control of the security services and away from the prying eyes of the police, you do not get evidence. That is what I think is wrong with the system.

Q 91

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

The Bill proposes that TPIM notices will be subject to High Court review in all cases. I would like to ask you two questions in that context, going back to some evidence you gave a moment ago. First, will that reduce the amount of litigation that goes to the courts after, presumably, the High Court has approved the TPIM notices? Secondly, with the High Court review of TPIM notices, is the Bill more compatible with the civil and human rights that one expects, consistent with the criminal justice system?

Judith Farbey: On the first question, the current control order regime is bipartite. There is first an initial approval, if I could call it that, from a High Court judge and then, secondly, it goes to a substantive hearing. I foresee that those under TPIMs would be as enthusiastic to go forward to a substantive hearing as those under control orders. They will still be subject to intrusive measures, which they will oppose. They will still want and have the right to full judicial scrutiny. Therefore, I would not see any change in that regard. I have stupidly forgotten your second question.

Q 92

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

As a result of the detailed provision for High Court review, is this proposal, rather than the control order system, more consistent with what we have come to expect for civil liberties and human rights?

Judith Farbey: Without wanting to be too “lawyerish” about it, it would be impossible to give a blanket answer for all persons. The detailed consideration of a person’s human rights would depend on the facts of his or her case. I see no improvement with regard to article 6, and other articles may well depend on the facts of the particular case.

Q 93

Lord Macdonald: I agree. I am sure that as many people will be advised to take their cases to review as happens under the present system. I think that that is inevitable. As I said before, I think that the litigation around article 6 will continue—this Bill certainly will not stop it.

Q 94

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

It is a great pleasure to serve under your chairmanship, Mr Caton. Good afternoon to the witnesses. As Lord Macdonald has said, all members of the Committee want to see prosecutions as a starting point, but there are occasions when that is not possible. The TPIM Bill has been described as “mini control orders”—[Hon. Members: “By you!”]. By me, I know, and by critics of the Bill and the proposals.

The Government’s own counter-terrorism review concluded that there may be exceptional circumstances when it might be necessary for the Government to seek parliamentary approval for additional restrictive measures,  such as curfews, further restrictions on communications, associations and movement. Do you see circumstances where the Government might have to do that?

Lord Macdonald: It happens all the time. Any day of the week, I have a number of clients on police bail, which means that they are subject to restrictions before charge. Sometimes they are on police bail for as long as two years, subject to significant restrictions on the say-so of a police officer, because they are suspected of being involved in crime. No one says that that is unconstitutional, unfair or improper. It is a perfectly principled thing to do, because they are under investigation.

There are clearly occasions when, in the absence of a charge, people have to be put under restriction, which happens across criminal justice, but it has to be as part of a continuing investigation. We have to avoid the situation where people are plonked under restriction away from the prying eyes of criminal justice; they stay there for two years; and then the matter is discharged. That does not protect the public, except perhaps for those two years. It is not in accordance with our normal constitutional principles, and we could easily cure it by tying these sorts of restrictions into continuing investigations.

We could have a system where these measures could be imposed only when the DPP had certified that the evidence justified an investigation, and an investigation took place—sanctioned by a chief constable—continuing these measures, which could be in force for the length of that investigation or for two years, whichever was appropriate. It seems to me that at a stroke, with that system, the constitutional objections would disappear.

If the Home Secretary is certifying that she has reasonable grounds to believe that someone has been or is involved in terrorist activity, it is absolutely absurd that in those circumstances there are not active investigations into those individuals.

Q 95

Photo of Gerry Sutcliffe Gerry Sutcliffe Shadow Minister (Home Affairs)

Are you concerned about the fact that these are serious individuals, who are very dangerous, in that we are at a severe risk threat level at the moment, and we have high-profile events coming up—the Olympics and Paralympics—and some of the people who are subject to control orders at the moment, with relocation, could be back in London?

Lord Macdonald: I am not arguing that people who are plausibly suspected of terrorist crimes should not be subject to restrictions—of course they should—but they should also be subject to investigation. It is not enough to say, “We haven’t obtained any evidence so far, therefore we’ll put them in a control order and let the security services look after them.” That is not an appropriate response. If we have not obtained enough evidence so far, we need to keep trying, and in the course of that attempt, of course we can put them on something that is analogous to police bail. Of course, we can put them on curfews, tell them they cannot go to certain places and tell them they cannot meet with certain people. Those are common or garden bail conditions. That is happening up and down the country as we speak, including to people who are not subject to charge, who are on police bail. There is a great misunderstanding about this; it is not per se constitutionally objectionable to restrict people who have not been charged. It happens all the time, but you have to get the process right, so that it is a part of criminal justice, and not just handing  people over to be surveilled by the security services on control orders, which does not create—or has not, historically, created—any evidence at all.

Q 96

Photo of Paul Goggins Paul Goggins Labour, Wythenshawe and Sale East

Perhaps I might have a little more on the question that Gerry asked, because that is really based on the final page of the review of counter-terrorism that the Government conducted, which acknowledges that the measures in this Bill, in exceptional circumstances, may not be sufficient to control the risk which an individual poses. It points to some future emergency legislation. I know your view, in relation to extension beyond 14 days pre-charge detention, was, very strongly, that it should be emergency legislation. Do you hold that view in relation to this, or do you think it would be possible to have a power within this Bill that would allow the Secretary of State to impose other conditions—perhaps with a higher threshold test of the balance of probabilities—knowing that, immediately, the court has oversight and could strike out those conditions, if it did not think that they were proportionate?

Lord Macdonald: My impression has been—I may be told that I am wrong about this—that if you give Ministers a power, sooner or later they are going to use it.

Hazel Blears (Salford and Eccles) (Lab) indicated dissent.

Lord Macdonald: I see one former Minister shaking her head, and she knows much more about it than me, but I would prefer it, and I would think it safer, to have this as it is, with a form of emergency legislation, if anyone thinks that will ever be needed. I am slightly sceptical about this. As you will appreciate, there are a number of competing interests and views in this review, and many different views were accommodated and reasonable solutions were arrived at. You have to posit a pretty horrendous catastrophe to go beyond this, as you would to go beyond 14 days. We were talking about scenarios in which there were simultaneous mass casualty attacks in a number of major cities. We can all imagine ghastly things happening, and all things are possible. One of the things that we have to do when we are thinking about legislation is to come to conclusions about what is remotely likely. Personally, I think that these sorts of measures are proportionate and appropriate, so long as they are tied to the criminal justice system, which at the present, they are not.

Q 97

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

Lord Macdonald, you will no doubt be aware of the comments of Lord Carlile. I think that he said in one of his reports that the Crown Prosecution Service is assiduous in pursuing prosecutions, where there is sufficient admissible evidence. Is there anything that stops the DPP, in your words, actually carrying on with the investigations or examining the prosecution possibilities? Because certainly the evidence we have been given thus far is that that is pursued.

Lord Macdonald: It would not be the DPP; it would be the police, and of course there is nothing. The problem I think we have arrived at—to some extent, there is an attempt in this Bill to deal with it—is as  much a cultural one as anything else, which is that when people are on control orders, the view is that they have been dealt with. Somehow they are contained, they have been dealt with, and they are not a priority to the extent that people out there who are not under control orders are. So people in prison and people under control orders are, to an extent, contained. That has led to a situation in which there has been a dearth of serious investigation into these individuals.

This Bill grapples with and acknowledges that—it was clearly acknowledged during the course of the review. The Bill tries to grapple with that by putting some sort of obligation on a chief constable to make a report to the Home Secretary at regular intervals, but why do it that way? Why do it in such a half-hearted way? Why not put the duty to investigate not only at the heart of the Bill, but as a precondition to the sorts of measures being imposed? It seems to me that, if you do that, you are in the best of both worlds. No one can constitutionally object to the measures and you have every impetus in the Bill to encourage investigations, which, in turn, are the only process likely to result in prosecution and then imprisonment.

Q 98

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

I suppose it is a question of whether certain issues arise. I think that the key comment is admissibility of evidence. You know the challenges when a case is brought forward where there is information and intelligence that may not be admissible but that is highly persuasive and points to particular courses of action. In such circumstances, where it may be determined that a prosecution cannot be brought, are you saying that Government should not do anything and that there is nothing they can do, because bail does not seem to apply because there cannot be an ongoing investigation and you have reached the determination that, based on the evidence, you cannot bring a prosecution? Surely that is the crux of the argument that we are getting at.

Lord Macdonald: If I may say so, I think you are a bit too dismissive of our justice system and what it has achieved.

Lord Macdonald: Let me explain why I say that. Traditionally, the way that a justice system would respond to that would be to continue to investigate the individual. You do not reach a point where you say, “We have investigated him. We haven’t got the evidence. There’s nothing else we can do. We will cease the investigation.” What you do is continue the investigation and, meanwhile, if there are reasonable grounds to suspect, which there plainly would be, you put the individual under some form of restriction. That is what happens conventionally, and I see no reason at all why the situation that you posit could not be dealt with in the same way. An investigation into a crime such as terrorism should not come to an end point. If there are continuing suspicions about that individual, the investigation continues.

Photo of Martin Caton Martin Caton Labour, Gower

This is your last question, Minister. Other people want to come in.

Q 99

Photo of James Brokenshire James Brokenshire The Parliamentary Under-Secretary of State for the Home Department

This is my last question, I promise. We clearly respect the fact that everybody is trying hard to bring prosecutions in the first place. I  would be interested to hear your thoughts about the case that was brought this morning where Lord Carlile referred to post-acquittal control orders being put in place. What would be your view in those circumstances?

Lord Macdonald: If you are in a situation in which someone has been acquitted and there are no grounds to suspect that they have been involved in anything other than the act for which they were acquitted, I think that putting them under continuing restrictions is deeply problematic. That is my answer. You may well say that, in those circumstances, the Government have a duty to act, in spite of the fact that they cannot do anything through the justice system, but we will have to disagree philosophically on that. The Government have all sorts of other powers at their disposal. They have agencies and very profound forms of surveillance, which they can exercise in order to keep people of that sort under control, as the Americans do. The Americans do not have any form of control order, and European countries do not have control orders of that sort. The traditional way to deal with the problem that you have identified is surveillance and the gathering of evidence. If someone has been involved in terrorism in the past, it is more than likely, frankly, that they will be caught doing it again.

Q 100

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I welcome you and the witnesses to the Committee, Mr Caton. I have a few questions for you to explore, particularly around relocation and curfews, but first I want to follow the Minister’s point that you appear to be saying that police bail is a preferable system to administrative restrictions, whether they be control orders or TPIMs. Can you honestly say that you could put somebody on two years’ police bail knowing that you cannot use the intelligence that you have to bring that person into the criminal justice system? Would that not be something of a sham whereby even though you know you cannot use the intelligence that you have, you adopt one set of procedures because they are connected to the criminal justice system and have someone on police bail for two years?

Lord Macdonald: It depends on the status of the investigation. I would be very suspicious—I was when I was DPP—of anyone who said to me, “We know something from intelligence.” One wants to understand what the quality of that intelligence is and what its character is. Intelligence, in my experience, turns out to be wrong as often as it turns out to be right. People who are professionally involved in intelligence will be honest with you about that, if you catch them on their own. Intelligence is sometimes right; it is sometimes wrong. You can always, with respect, posit extreme examples that put the person who you are in a discussion with into a corner. If you say to me, “We are absolutely certain that someone has committed an offence. We are absolutely certain that we are not going to get any evidence from them through an investigation,” of course, that creates a difficulty for my argument. However, I have never seen a case of that sort, and I did not see a case of that sort in the five years that I was DPP.

Q 101

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

You have made a great play, Lord Macdonald, of the fact that you want a system that encourages ongoing investigation and that galvanises the agencies to keep digging and getting more information. In fact, the evidence that we received this morning from the Director of Pubic Prosecutions said that he did not  think there was a great chance of getting evidence after you had made an order or, indeed, after you had put somebody on police bail, because they are then aware of surveillance. I think Deputy Assistant Commissioner Osborne said that he thought it very unlikely that you would be able to gather further evidence in those circumstances. Why would police bail somehow be less of a problem and put the suspect on less notice than either a control order or a TPIM? It seems that you are reaching for this easy answer of police bail, as if it solves all the problems, when we are dealing with things that are not easy to resolve.

Lord Macdonald: I do not think it is an easy answer because, of course, the investigations that would be conducted would have to be carefully planned, targeted and designed investigations into serious crime, which is what we are talking about. They would have to be carefully designed and it would be hard work.

If you have a system of restrictions like this that is imposed by the police who are under a duty to conduct investigations, you are more likely to get investigations that bear fruit than if these sorts of conditions are, in effect, surveilled by the security services, for whom I have huge admiration but whose role is protective rather than investigative. You would change the culture if you had these sorts of measures coincidental to and part of a police investigation, rather than as part of what I would see as security service warehousing. I am not criticising the security services at all. I worked closely with them when I was DPP, and I have huge respect for them but, on this issue, they are wrong. We are more likely to lock these people up if we move to the sort of system that I am talking about, and that is really at the heart of this.

Q 102

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

We will agree to differ there. In terms of relocation, your views are very clear—you have opposed relocation. We have heard evidence this morning from the DPP, from Lord Carlile and from Deputy Assistant Commissioner Osborne that shows that they regard relocation as probably the single most useful restriction that can be imposed. Of the 12 existing control orders, nine of them have a relocation provision. Of those 12 orders, half a dozen of the people concerned reside in London and are likely to come back to London once those restrictions are removed. They are likely to come back to London by December this year, before the Olympics next year, which is a huge security challenge for the whole country. Why are you so opposed to the issue of relocation, which appears to be an extremely useful tool in terms of surveillance?

Lord Macdonald: I do not have any problem at all with relocation. I have clients who have relocated as part of their bail conditions. As long as a measure as severe as that is attached to the justice system in the way I have described, I do not have a difficulty with it. The problem with control orders is that they are a form of administrative control that does not follow due process proceedings. That is why I object to their more extreme form. If these measures are part of a bail condition system—a due process criminal justice system—they are perfectly appropriate. People are being subject to relocation up and down the country as part of their bail conditions. For me, this is an issue of principle. I am not saying that we do not need these powers; my difficulty is where they are placed at the moment.

Q 103

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

May I ask one supplementary question? If these issues were part of bail conditions and the situation was that the only intelligence you had was inadmissible in court, do you think that those bail conditions would hold or would they be struck down by the courts as a sham?

Lord Macdonald: The police make bail conditions of this sort. I am sure that occasionally judicial reviews are brought, but I am not aware of substantial numbers of judicial reviews being brought around bail conditions. The police and the courts have huge discretion to apply conditions to bail, and they do it all the time.

Q 104

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

I do not want to put words into your mouth, but it seems that you are suggesting that using bail conditions could replace control orders, or indeed TPIMs. Is that the thrust of what you are saying?

Lord Macdonald: Yes, I think so.

Q 105

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

With that in mind, do you believe that the current conditions that can be imposed under bail circumstances are as powerful as those for control orders, or indeed TPIMs? Relocation has been mentioned, but do you feel that bail conditions are powerful and stern enough to be able to keep track of these individuals?

Lord Macdonald: Courts may apply any condition to bail that seems reasonable to the court, as long as it is necessary to prevent absconding or the commission of further offences. Those conditions include curfews, relocation or banning from certain areas or colleges. I have not seen anything in the Bill that could not form part of a bail condition.

Q 106

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

So you think that the current conditions that can be applied to bail do not need to be enhanced whatsoever to meet the concerns—

Lord Macdonald: You would have to raise the present bar on granting bail in terrorism cases. At the moment, courts are forbidden from granting bail in such cases, but as long as that bar is raised, the mechanism could be simply achieved, I am quite sure that any court or police officer imposing bail could deal with it. Police officers are presently not allowed to impose bail conditions of attendance at a bail hostel or electronic tagging. I will be corrected if I am wrong, but I think that everything else is at large.

Q 107

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

Does that form part of the theme of the review that you have done for the Home Secretary?

Lord Macdonald: I had a section in my review about the desirability of bringing control orders within the criminal justice system. It did not find favour with the Home Secretary, but it was suggested.

Q 108

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

Forgive me, but where is that review now?

Lord Macdonald: I did a report on the counter-terrorism review, and it was published simultaneously with that. Paragraph 8 of the control orders section of my report, which is on page 10, dealt with restrictions as part of the criminal justice process. I said:

“I have no doubt that were a regime of restrictions against terrorist suspects to be linked to a continuing criminal investigation into their activities, many of the constitutional objections to such  a regime would fall away. It is precisely because the present control order system stands apart from criminal due process that it attracts such criticism.”

I made the suggestion, but it was not accepted by the Government.

Photo of Martin Caton Martin Caton Labour, Gower

I call Stephen Phillips. I think that you have had enough, Mr Ellwood. There are several more questions to get through.

Q 109

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I just wanted to follow up briefly on the suggestion that this could all be dealt with through the bail mechanism, and police bail in particular. The measures associated with either TPIMs or control orders are pretty draconian. Is it not better to have them based on the reasonable belief of the Secretary of State and reviewed by the High Court, rather than simply decided by a custody sergeant in a police station?

Lord Macdonald: You would need to have some sort of mechanism for them getting there in the first place. You could have a system, for example, where the Home Secretary applied to the High Court to lift the bar on bail in terrorism cases, and if the High Court agreed, the case could be passed to the police for investigation in the way that I have described. There would have to be some kind of gateway mechanism, and the Home Secretary would still have to play a role in it. I agree with you about that, because these are such sensitive investigations. It is because it is precisely likely that the measures that were put in place as part of the bail conditions would be severe that you would want some kind of entry mechanism before they were passed to the police for that sort of process. I am quite sure, however, that something along those lines could be designed quite simply.

Q 110

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

On another topic related to some of your earlier evidence about relocation, the Bill has within it, as you will have seen, an exclusion measure in schedule 1, which empowers the Secretary of State to restrict individuals from entering specified areas or places. What is to stop the Secretary of State from imposing a restriction that someone subject to a TPIM cannot enter any part of the United Kingdom, save for a particular place?

Lord Macdonald: I just want to check the wording of that.

Q 111

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

It is in schedule 1 on page 18 of the Bill, if you have the official copy.

Lord Macdonald: I am afraid that I do not.

Lord Macdonald: So it is “Travel measure”.

Q 112

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

I have it as “Exclusion measure”. The Secretary of State could impose a restriction on an individual entering any part of the United Kingdom save for, let us say, a particular town. Would that not be precisely the same as a relocation measure?

Lord Macdonald: I am sorry to be difficult. You are looking at paragraph 3, “Exclusion measure”, which states:

“The Secretary of State may impose restrictions on the individual entering…a specified area or place, or…a place or area of a specified description.”

Lord Macdonald: That is entering. That is not requiring someone to live in a particular place.

Q 113

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

No, but what if the restriction that the Secretary of State imposed was that you may not enter any part of the United Kingdom except for Salford or Eccles?

Lord Macdonald: That would certainly be challenged in the High Court, for all sorts of reasons. The High Court would probably say that that was a bad faith application of the provision and that it went beyond what the provision was intended to achieve.

Q 114

Photo of Stephen Phillips Stephen Phillips Conservative, Sleaford and North Hykeham

It would involve litigation. But at least on the face of schedule 1, there is something that might—by the back door as it were—reintroduce the relocation.

Lord Macdonald: I think that the Home Secretary would receive strong legal advice that to make that order would be an abuse of that provision, frankly. That is my opinion.

Q 115

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

You said that you welcomed the fact that TPIMs appear to allow for more continuing investigation than under the previous regime.

Lord Macdonald: Yes, they do.

Q 116

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

I just wanted to find out whether you have evidence of the grounds for believing that the security services genuinely warehouse people whom they could otherwise prosecute, or is this more the theoretical position that you think it should be within the legal system?

Lord Macdonald: There was a very strong view, which I think was accepted by most people during the counter-terrorism review, that control orders acted as an impediment to prosecution. That was partly because the measures imposed prevented people from meeting, talking and so on with co-conspirators. Normally, in a criminal investigation, you would want to surveille all those sorts of conversations, rather than closing them down, because that is apt to produce evidence for prosecution.

It is partly that, but there are a number of other reasons, some of which I wouldn’t particularly want to go into in public, about how the system works when it is operating. There are a number of reasons why, when people are under control orders, the prospect of prosecution falls away. Of all the people placed on relocation, only one has subsequently been prosecuted. The people placed on relocation are those regarded as the serious threat and those involved in the most serious terrorist activity. It seems to me that the fact that only one of them has subsequently been prosecuted is a failure of public policy.

Q 117

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

Might not that also tell you that they were on control orders for the reason that they were a risk that needed managing, but could not be brought to prosecution?

Lord Macdonald: They can be managed for a certain period—control orders cannot last for ever. Sooner or later, the control order is gone and the person is back leading a normal life. Even without the time limit proposed in this Bill, no one had ever argued that anyone could be kept under a control order for 10, 15, 20 or 30 years.

I absolutely accept that if people are on a control order, that is managing a risk—of course it is. It is managing the risk that during the period they are under the control order they would otherwise go and blow themselves up or put a bomb in a hotel lobby. Of course it is managing that risk to an extent—for that limited period—but what it is not doing, it seems to me, is encouraging the possibility that that person could be put in the dock and locked up for 40 years. That is the problem.

Photo of Martin Caton Martin Caton Labour, Gower

I am sorry but I am going to move on. We have time for only one more question, really.

Q 118

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Lord Macdonald, I was very interested by what you said about the DPP having a role in the process before the imposition of a control order or TPIM. I think you said that, in your view, the DPP should issue a certificate prior to the imposition of any alternative measures such as a TPIM or control order. Would that be a certificate of insufficiency of evidence, either under the full code test or the threshold test?

Lord Macdonald: Under the old system, the DPP was invariably asked at the time the order was going to be applied for whether he thought there was sufficient evidence. Invariably, the position was, “No, otherwise the control order would not have been applied for.” I think that if you are going to have a gateway system to enable measures to be applied to people, and if you are going to tie it to a continuing investigation, that gateway system ought to have some sort of statement from the DPP associated with it to say that there is sufficient evidence to justify an investigation and that an investigation should take place. It could then be passed to the police with the bail measures then imposed. That is a rough sketch of the idea.

Q 119

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

I misunderstood. If it was the other way round, the danger would be that having a certificate of insufficiency of evidence would achieve the sort of mischief that you are worried about: control orders or TPIMs, in effect, resulting in the shutting down of the criminal investigation.

Lord Macdonald: I regard the insufficiency of evidence not as the end game, but as the challenge to get some.

Q 120

Photo of Robert Buckland Robert Buckland Conservative, South Swindon

Would you agree that an element of flexibility in the system is desirable—in other words, an encouragement of the fact that TPIMs should not be the end of the line for prosecution?

Lord Macdonald: This Bill is an improvement, in my view, on what went before, not least for the reason that it clearly offers more encouragement for an investigation than the old system. Added to the other improvements that I listed at the outset, that is another one. You are right, and I should have mentioned it.

Photo of Martin Caton Martin Caton Labour, Gower

I am afraid that that brings us to the end of the time allotted to the Committee to ask questions of these witnesses—my apologies to you, Mr McCullough. On behalf of the Committee, thank you all very much for the evidence you have given us.