Examination of Witnesses

Terrorism Prevention and Investigation Measures Bill – in a Public Bill Committee at 12:00 pm on 21 June 2011.

Alert me about debates like this

Shami Chakrabarti, Isabella Sankey, Dr Eric Metcalfe and Dr Michael Korzinski gave evidence.

Photo of Martin Caton Martin Caton Labour, Gower 4:45, 21 June 2011

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

Isabella Sankey: My name is Isabella Sankey. I am from Liberty.

Shami Chakrabarti: I am Shami Chakrabarti, also from Liberty

Dr Metcalfe: Eric Metcalfe from Justice.

Dr Korzinski: Dr Michael Korzinski from the Helen Bamber Foundation

Photo of Martin Caton Martin Caton Labour, Gower

These introductions are wonderful.

Q 121

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

I believe that you were all here for the previous session, so you will have heard a lot of discussion about the idea of moving from a TPIM-control order system to a police bail-type system. I do not know if you have had a chance to look at the amendments that I have tabled, which seem to fit quite well with what Lord Macdonald was saying. I wish that I had spoken to him recently about it. Do you have any response to that idea or those particular amendments?

Shami Chakrabarti: From our point of view, we really welcomed that argument. It might have been coming from the prosecutorial side of things—from Lord Macdonald, who was obviously an incredibly successful prosecutor in terror cases—but it also chimes very well with our concerns about fundamental rights and freedoms. There are some misunderstandings about this debate, which obviously has been polarised over the years. No one has an objection to putting restrictions on people’s movements because they are considered to be a threat. Restrictions are put on people’s movements. They are put on people’s movements under pre-charge detention—we obviously have great arguments about how long that should be for—and they can also be put on people as part of pre-charge police bail. They can be put on people’s movements as part of a community sentence post conviction or a custodial sentence, and they can even be put on people’s movements when they are released from prison under licence.

The constitutional concern about the control order regime has always been—and I do not need to remind members of the coalition Government because they kept both Houses up all night in 2005—that it sits completely outside the criminal justice system as an indefinite preventative measure. Separating this system institutionally and legally from the criminal justice system makes the difficulty permanent, because you basically decide at the beginning or at some stage of an investigation that we have got some intelligence on a person, but we will never be able to convert it into evidence that we can use—whether for a terror offence, benefit fraud or anything else. By the way, it would be good enough for me if this meant that you could charge the person at some stage, and convict them if they are guilty and put them in prison. With respect, Dr Huppert, you are right and so was Lord Macdonald. If we can find a way to stitch restrictions properly back into the traditional rule of law in this country and the criminal justice system, that would be very welcome for everyone.

Dr Metcalfe: On behalf of Justice, I agree with what Shami has just said. I think an important point to bear in mind is that the control order regime was in fact inspired by the immigration bail conditions that were imposed on a suspect named M in 2004 by the Special Immigration Appeals Commission precisely because he had mental health difficulties with being in Belmarsh on an indefinite basis. Mr Justice Collins imposed a series of bail restrictions, and in the Belmarsh judgment by the House of Lords, Lord Bingham said that if bail restrictions can be imposed on a person, it is a better way of dealing with them than locking them up in prison indefinitely. I also agree with Shami that what is primarily offensive about the control order regime is not the idea of imposing restrictions on a person whom you suspect of being involved in serious terrorist activity, but the way it sidesteps the safeguards of our criminal justice system and the foundation principles of the criminal justice system.

Dr Korzinski: I come at this from a slightly different perspective. I am not an expert on law or policy. What I am an expert on is the impact that the control order regime has had on the people who have been subjected to it. Since 2005, I have been working with individuals whom, I guess, you could describe as the subjects of the current conflict, if you want to put it in those terms. These are men who have returned from Guantanamo Bay, people who have been subjected to control orders or people who are at risk of being removed to countries where they may be detained and tortured. The way in which I come into it is that often I am instructed by solicitors to look at what happens to the people. What I am concerned about in all this—there are people on the panel who are far more expert than me about the legal issues—is the absence of any sort of safeguards with respect to the impact on the mental health of the individuals who are subjected to these regimes. I can say quite unequivocally that it has been catastrophic in all the cases that I have worked on.

I am really happy to be here, because I have been trying to have a conversation with people about that since 2005, when I was first referred cases. Whenever one puts forward the issue of mental health—whether in relation to moving, relocating, or the separation from family and loved ones—it is always outweighed by security concerns. That is the area that I feel competent to talk to you about today, so if people have questions in that particular area, I will be happy to share my views.

Q 122

Photo of Julian Huppert Julian Huppert Liberal Democrat, Cambridge

Thank you all for your answers.

I want to come back to the issue of police bail. Would you be comfortable with the idea that one could run a system of police bail that provided at least as good security for the public, as well as at least as good a chance of prosecution, as a TPIM or a control order?

Shami Chakrabarti: I am confident that you could have a system that broadly replicates the TPIM in terms of the restrictions. It is not ideal. I have to agree with Ms Blears that none of this is easy, under any regime. The ideal, in terms of keeping the public safe, is obviously arrest followed by a limited period of pre-charge detention, and then charge and so on—do not pass go; do not collect £500—so you are in custody all the way through and there is evidence and you are convicted. Short of that, however, ideally you would be putting someone under surveillance and investigating them without tipping  them off at all—with no control order and no bail condition—for as long as you could achieve that with intensive investigation and surveillance. However, if there comes a moment when the risk to the public outweighs the benefit in an ongoing investigation that does not tip people off, it is better, I think—because you are more likely to get evidence in due course and to have a charge and a prosecution—to go with a TPIM turned into a bail condition than with this warehousing approach that broadly replicates the control order scheme.

To be reflective about the past 10 years—I wear specs now and my hair is a little greyer than when I started complaining about exceptional measures—and to be fair to the previous Government, control orders were brought in relatively quickly after the Belmarsh debacle, and since control orders were introduced in 2005, we have seen some new ancillary criminal offences, such as acts preparatory to terrorism and attending terror training camps. Some other criminal justice-type measures were brought in by the previous Government that I think would sit rather neatly with the criminal justice approach.

The big philosophical question in all this over the past decade, and it continues now, has been whether everything changed so much on 9/11 that we have to deal with terrorism outside the normal rule of law—that this is war and not law any more—or whether we need to modify our criminal justice system so that it is robust enough to do what Lord Macdonald did so well and that we can do even better. Obviously, I advocate the second approach, and I hope that now, as we come to the 10th anniversary of the twin towers atrocity, all parties might agree on that ambition.

Q 123

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I want to follow up the idea that police bail is somehow the answer to all our philosophical difficulties and practical problems, because I genuinely do not feel that it is. I would welcome your view on that, and I am grateful for your acknowledgement that nobody really wants to be in this territory, but what else can we do?

I do not understand why you say that it is more likely that evidence will be gained to sustain a prosecution when somebody is on police bail, rather than on a control order or a TPIM. The evidence that we heard this morning from the Director of Public Prosecutions and Deputy Assistant Commissioner Osborne was that it is most unlikely that, once somebody is tipped off that they are under surveillance, they will engage in activities that will give you evidence. I do not understand the difference, that because you are on police bail you are somehow more likely to be careless about how you use your computer, whom you contact and associate with than you would be if you were on a TPIM. Why do you think that is the case?

Shami Chakrabarti: I completely see your point that it is not going to happen by magic. There is nothing magic about it. If we call it police bail, and we do not call it a control order any more, suddenly we are going to find evidence. Not at all—the crucial difference is that you have now institutionally tied the police and prosecutors back into the system.

I have had the privilege, and it may not have been such a pleasure for the Home Secretaries concerned, to discuss these measures over the years one-to-one with various Home Secretaries, who have been very generous with their time. I remember a meeting with a Labour  Home Secretary before the last election that was particularly important to me and my colleagues. That Home Secretary said to me, I believe with a genuinely heavy heart, “I am afraid that we haven’t managed it. I don’t think we’re going to be able to do away with control orders. There are still a handful of cases that are very difficult, and I am really concerned about the risk. We have a handful of files that are very sensitive and very difficult, so I don’t think we’re able to do away with control orders.”

I am grateful for that Home Secretary’s time. I remember turning both to the Home Secretary and to the Home Office officials who were sitting in the room—they were neither police officers, nor prosecutors—and I said, “I appreciate what the Home Secretary has said, but when you reviewed these files did you take the advice of police and prosecutors to see whether any of this intelligence can now be converted into evidence?” I am sorry to say this, but there were red faces in that room. I was told by the officials concerned that, no, the files were not being reviewed by prosecutors because, of course, intelligence is different from evidence. I said, “Well, of course I know intelligence is different from evidence, but how are we ever going to look at ways of converting intelligence into evidence and ways of following up intelligence leads and turning them into evidence?” That is what police and prosecutors do and, with respect, it is not the job of the security services and bureaucrats alone.

Q 124

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

With the greatest respect, I do not think you have answered my question. Why does making it police bail make it more likely that people will make mistakes and give us evidence?

Shami Chakrabarti: Because you tie the police and the prosecutors into the system. At the moment, they are excluded. It is a completely separate system.

Q 125

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

I do not think they are excluded. The current legislation provides for them to be consulted.

Dr Metcalfe: They are not in charge of the process, which is the fundamental point.

Q 126

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

But the legislation provides that everybody seeks prosecution where possible. That ties in all the agencies.

Dr Metcalfe: With respect, the legislation provides only a slightly enhanced requirement on chief constables to report back to the Home Secretary. I agree with Keir Starmer that, on the odds, it is relatively unlikely that you will gain any more evidence from being on police bail. The fundamental point is that it is an answer to a different question, which is about harnessing this thing to the criminal justice system. As much as I do not think that police bail will gather much more evidence than control orders, you are likely to marginally improve the system by having the police in charge of the process, because they are investigators.

Q 127

Photo of Hazel Blears Hazel Blears Labour, Salford and Eccles

If you were to have police bail for a period of up to two years, based on intelligence that is not admissible as evidence, do you not feel that there would be a similar level of judicial activism in striking down the conditions of police bail, and perhaps rightly so, as there would be for striking down the provisions of control orders or TPIMs?

Shami Chakrabarti: I have two points to make in response to that very real question.

As I understand it, there is a two-year limit on the new TPIMs proposal, so if we do not turn this into a proper criminal investigation with police officers and prosecutors at the helm, what will happen after two years? Will we just let people wander off into the sunset, or will we suddenly concoct a way of issuing a new control order, and there still is not a criminal investigator in charge of the process?

The second answer is that, yes, if the system were abused, of course the courts would say, “Are you really investigating; why is it taking so long?” If there were a genuine good-faith investigation, as no doubt happens in other cases—police bail is the norm, by the way, in relation to other cases across the book, such as organised fraud, serious crime, sex offences and murder, and those are not all easy cases—the criminal courts and the High Court, if necessary, would give a certain latitude to police and prosecutors acting in good faith and demonstrating why a complex investigation was taking time, perhaps even without the need for secret intelligence, but having to co-operate with six different countries to convert our intelligence into hard evidence, and to de-encrypt files. That is another process that is easier, thanks to other measures that your Government brought in, which now need to be reconsidered in the light of attempting to move from preventive measures to the criminal justice aspiration that you say you share.

Dr Metcalfe: To supplement Shami’s point, it is worth noting that in terrorism cases when a person is charged with a terrorism offence there is often a considerable delay in the disclosure of evidence in relation to the charge before they can challenge it. They will not be on bail; they will be locked up, most likely in Belmarsh, where people may spend up to six months before they have sight of the evidence. We are not talking about a radically dissimilar system of police powers between what goes on at the moment and when a person is actually charged with a terrorism offence.

Q 128

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

Forgive me, I am genuinely having trouble understanding Liberty’s argument. You are suggesting that the sort of restrictive measures in control orders or the Bill should be something on which a custody sergeant decides, as opposed to what is proposed in the Bill, which is that the Secretary of State must have a reasonable belief that an individual is involved in terrorism, which is then subject to extensive review by the High Court. Is that not much more satisfactory than having it decided by a custody sergeant in a police station anywhere in the country?

Shami Chakrabarti: I think you are right, by the way, that there would be a very good argument for lifting this above the level of custody sergeant. I think I heard Lord Macdonald say—you will correct me if I am wrong—that because you would not necessarily want bail to be the norm in terror cases, and you would want pre-charge detention in most instances, there could be a residual role for the Home Secretary in deciding whether to lift the bar. The crucial safeguard—this is what Liberty’s argument is about—are the justifications for bail restrictions in the Bail Act 1976 that apply in all other cases because they ensure the purpose of the restriction, which is not indefinite warehousing because we have given up on criminal investigations. The purpose is in the Bail Act. Preventing someone from interfering with witnesses, safeguarding evidence, and preventing someone from  absconding from bail are all designed to make sure that this is about a real and ongoing criminal investigation, and not an indefinite preventive measure.

Dr Metcalfe: I think, with respect, it will never be a custody sergeant. If police bail is offered in a serious organised crime investigation, for example, which has been managed over 18 months or two years, it will not fall to a custody sergeant to make the decision to grant police bail. Such decisions will always be made in consultation with, or at the direction of, senior officers, even a chief constable, prosecutors and so on. I do not think we are comparing like with like. The real analogy would be what a person who is facing a two-year investigation by police in a drug importation case gets. It will not be the custody sergeant in those cases.

Q 129

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

But all those people, as I am sure you would agree, Dr Metcalfe, are below the level of the Secretary of State, and the subsequent judicial oversight directed to their decisions is below that of the High Court.

Dr Metcalfe: First, the Secretary of State does not act alone, but acts on the advice of people, and I imagine that many of the people taking the decision in the chain of custody argument would be many of the people who would, in a control order case, be required to advise the Home Secretary on the feasibility of a control order being obtained.

Q 130

Photo of Tobias Ellwood Tobias Ellwood Conservative, Bournemouth East

May I turn to the human rights and civil liberties issues in comparing TPIMs with control orders? The proposal is that there will be a mandatory High Court review of TPIM notices. Is that sufficient to guarantee that the new regime will be more compatible with human rights and civil liberties than the old control orders?

Isabella Sankey: No, it is not. My reading of the Bill is that it is incredibly similar. One point to bear in mind, and it relates to the last question, is that the type of review that the High Court will carry out is extremely limited. It will review whether the Home Secretary is right in reasonably believing, based on the information before her, that somebody poses a risk. That can be entirely subjective, it can be based on wrong information and it can be based on information that might have been obtained overseas through methods that we would not condone in the UK, so the type of review that will be exercised by the High Court will be extremely limited.

Dr Korzinski: The phrase, “compatible with human rights and civil liberties”, is interesting. What is absent in the review is any understanding of the impact of these regimes—TPIMs, control orders—on the mental health and well-being of the individuals and families concerned. That is a really serious absence. As important as these discussions for the legal side of this issue, for the seven years in which I have worked on this issue it has been impossible to get people to think about the impact on the mental health of the individuals involved. As important as the legal principles are, there are other principles that have to do with the individual’s experience of the regime and in turn with how that experience is translated or communicated to the communities that are often the most sensitive about these issues.

I was talking to a controlee this morning, and I told him that I was going to give evidence to the Committee. He said, “I’d really like to say something about my experience.”  I said, “Well, can you write it down?” Then I said to him, “Could you fax it to me?” He said, “What are you trying to get me to do? Breach? I can’t fax.” So we had this conversation and he wrote something quite compelling. It is probably not appropriate to share it, but I thought that it was profound in terms of understanding what is going on with these individuals.

Believe me, if that factor is not taken into consideration you are storing up problems, because all the controlees I have worked with and who have come off control orders have major mental health problems. You see breakdowns within their families, and children who are completely dysfunctional in school and who need support. With one guy, the child was rubbing his faeces on the wall because of “what happened to daddy”. There is something around the need to get to grips with that part of it that I wish I could engage people in a conversation about, because believe me— whatever policies you come up with, the long-term issue is that you have to weigh those policies up against the impact on these individuals and what the long-term consequences are for them.

That is what I am working on at the moment. I have been in a privileged position; I am only an expert because I have been working with the controlees for as long as I have. I have had the experience of working in depth with people who are considered the most at risk—the people who pose the highest threat—and to get somebody from, let us say, some part of the country to our foundation to do an assessment in the old days was like getting blood from a stone. If that person required treatment, they were told they could go to the local GP. These guys will not go to the local GP, so we need to engage with them and have conversations with them, and I think that we need to talk to them. In my view, I think that that is what is missing in all of this.

There are serious issues such as national security, risk and terrorism, but with these phrases—“extremism”, “radicalisation” and so on—you need to drill it down into what these words are. In my view, by the time that we start formulating these Bills it is too late, because the issues are really beginning in the families and the communities. They are beginning with young people. We are not talking about outsiders; we are talking about people who, for the most part, are English or people who were refugees at one point but who are now British citizens. So by the time that we create these laws, in my view it is too late. This has to be a holistic process.

Photo of Martin Caton Martin Caton Labour, Gower

I am sorry to cut across you, Dr Korzinski, but we have limited time.

Q 131

Photo of Shabana Mahmood Shabana Mahmood Shadow Minister (Home Affairs)

Control orders were subject to annual renewal by Parliament, and TPIMs, if the Bill is passed, would become a permanent feature of the legislative landscape. Do you think that annual review and renewal by Parliament should have been retained in the Bill?

Isabella Sankey: Absolutely. We think that, at the very minimum, a sunset clause should be included in the Bill. One reason that a sunset clause was originally introduced was because the control orders legislation was drafted so quickly, in response to the Belmarsh judgment. At the time in Parliament—Shami mentioned  the long nights that peers in the House of Lords stayed up to resist the legislation, particularly on coalition Benches—there was a feeling that the legislation was unattractive, that it was being done with a heavy heart, that it was intended to be exceptional, and that it should be temporary in nature, in the same the way that legislation in the ’70s and ’80s to deal with the troubles in Northern Ireland was temporary, in recognition of the exceptional circumstances. At the very least, for Liberty, including a sunset clause in the Bill would be very welcome.

Shami Chakrabarti: After all these years, it is a horrible thing to have to say that if TPIMs are not to be brought into the criminal justice system, as Dr Huppert and Lord Macdonald appear to be suggesting, and if we will not get back, with reflection, to the normal rule of law in this country and we are going to go in for exceptionalism, it should not be permanent exceptionalism. If it comes to that, it would—I choke on these words—be better to keep control order legislation, subject to annual renewal, than to turn this exceptionalism into the normal law of the land in England and Wales.

Dr Metcalfe: Justice’s preference is to have neither TPIMs nor control orders, but I agree with Shami’s point that it is better to have a bad system renewed annually than to have a slightly less worse system that is permanent. Parliament has generally missed its opportunity with annual renewal to do much about the control order scheme, but you should not deprive yourself of that opportunity. We see control orders and TPIMs as essentially being the same scheme, and in reference to the earlier question, they are almost identical in terms of judicial review. The sole difference seems to be raising it from reasonable suspicion to reasonable belief, but you should not make the TPIMs scheme or control orders into a permanent feature of our legislation.

Q 132

Photo of Eric Ollerenshaw Eric Ollerenshaw Conservative, Lancaster and Fleetwood

I want to check up on something that Dr Metcalfe referred to, which is the slightly more prominent role for the police under TPIMs. You dismissed that.

Dr Metcalfe: I am sorry that I did. I do not mean to suggest that the police have not been diligent in making their reports under control order legislation but, as Lord Macdonald said in his review, it had virtually no effect. To cite him chapter and verse, he described the scrutiny provided by the process as “frankly inadequate”. I do not think that putting an additional duty on chief constables to report back annually to the Home Secretary will greatly increase the quality of that process.

Q 133

Photo of Eric Ollerenshaw Eric Ollerenshaw Conservative, Lancaster and Fleetwood

Do you think that it is slightly better or worse than the old system, or is it irrelevant?

Dr Metcalfe: I think that it is better for them to report annually than not, but I cannot describe it as a great improvement.

Q 134

Photo of Eric Ollerenshaw Eric Ollerenshaw Conservative, Lancaster and Fleetwood

Therefore, do you think that there is a greater chance under this system, rather than control orders, to get people to trial eventually and get some investigation?

Dr Metcalfe: The difference made by clauses 10 and 11 will be marginal at best.

Q 135

Photo of Eric Ollerenshaw Eric Ollerenshaw Conservative, Lancaster and Fleetwood

Marginally better than control orders.

Dr Metcalfe: Only marginally.

Q 136

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

Under condition A—the first condition for imposing a TPIMs order for the Home Secretary—we have moved from reasonable suspicion required under control orders to asking the Home Secretary to have a reasonable belief. We were told earlier this morning that that was a considerable improvement. What is the panel’s view?

Isabella Sankey: It is a marginal difference and perhaps only semantic. It is nowhere near the standard of proof that you have in civil cases which is, on the balance of probabilities, much further away than “beyond reasonable doubt”, which you have if you convict somebody in the criminal courts. The punishments can be very similar to community sentences, but you are not anywhere near that standard of proof, so I do not think that it makes much difference.

Shami Chakrabarti: And it is not proof; it is all based on secret intelligence. I am prepared to concede here and now that the Home Secretary has “reasonable belief” rather than “reasonable suspicion” when she has seen the secret intelligence and passes a control order, but the point is that it is unchallenged. It is secret. The suspect and his lawyers are not able to probe it, so you can use all this legal language such as “reasonable belief” and whatever, but this is not a legal system. It is an administrative secret system. You can have all tests you want, but they will not mean anything, because you do not have a charge and an adversarial fair trial to follow.

Dr Metcalfe: The president of the Special Immigration Appeals Commission said in 2003 that the standard of reasonable suspicion was not an exacting standard for the Secretary of State to meet. The standard of reasonable belief, which is already in place for the asset-freezing legislation that Parliament passed last year, is really only slightly more enhanced than reasonable suspicion. It is the kind of distinction that you would teach to law students in an advanced public law class. It is extremely difficult to explain the gradations otherwise, and it is certainly far below the standard of proof that would apply in an ordinary civil case about a road traffic dispute, for example.

Q 137

Photo of Rebecca Harris Rebecca Harris Conservative, Castle Point

Is it the case that reasonable belief is actually a higher standard of proof than would be required under the Bail Act 1976?

Isabella Sankey: Under that Act, the police should have reasonable suspicion to make an arrest.

Shami Chakrabarti: But under that Act, you are heading for a charge—that is the point. You get your due process and, to take up Dr Korzinski’s point, you get to the end of this Kafkaesque process down the road. It may be a long process, and you could end up being acquitted, having been banged up or under restrictions for years, but at least you can stand outside the Old Bailey saying, “Justice has been done and I have been vindicated”. The problem with these administrative, shadowy, quasi-judicial systems is that they potentially go on for ever and you never know why.

Isabella Sankey: One big safeguard in the bail conditions proposal would be that a court, which would not necessarily have to be a magistrates court, but could be the High Court, could review the conditions if they were challenged.  Ultimately, if they went on for three or four years, it is likely that there would be a finding of abuse of process, whereas under this scheme, although new evidence would be required after two years—[Interruption.]

Photo of Martin Caton Martin Caton Labour, Gower

I am afraid that the Division bell is ringing, and has brought the evidence session to an end—I  apologise to our witnesses. Thank you for the evidence you have given. I call on the Government Whip to move the motion to adjourn.

Ordered, That further consideration be now adjourned. —(Mr Newmark.)

Adjourned till Thursday 23 June at Nine o’clock.