Terrorism Prevention and Investigation Measures Bill
The Committee consisted of the following Members:
Sarah Thatcher, Committee Clerk
† attended the Committee
Stuart Osborne, Deputy Assistant Commissioner, Metropolitan Police, and Senior National Co-ordinator for Terrorism Investigations, Association of Chief Police Officers
James Stokley, Detective Chief Inspector, Public Protection, Counter-Terrorism Command
Keir Starmer QC, Director of Public Prosecutions
Deborah Walsh, Deputy Head of Counter-Terrorism, Special Crime and Counter-Terrorism Division, Crown Prosecution Service
Lord Howard of Lympne QC
Lord Carlile of Berriew QC, former Independent Reviewer of Terrorism Legislation
Public Bill Committee
The Chair: I have a few preliminary announcements. Members who wish to remove their jackets during the Committee sitting may do so. Will all Members ensure that their mobile phones and pagers are turned off, or switched to silent mode? I particularly ask that no Member tweets during the sitting whatsoever.
As a general rule, I and my fellow Chair do not intend to call starred amendments that have not been tabled with adequate notice. The required notice period for Public Bill Committees is three working days. Therefore, amendments should be tabled by the rise of the House on Monday for consideration on Thursday, and by Thursday for consideration on the following Tuesday.
For those Members less familiar with the process of taking oral evidence in Public Bill Committees, it may help if I briefly explain how we will proceed. The Committee will first be asked to consider the programme motion, the debate on which is limited to half an hour. We will then proceed to take a motion to report written evidence and a motion to permit the Committee to deliberate in private in advance of hearing oral evidence, which I hope we can take formally. Assuming that the second of those motions is agreed to, the Committee will then move into private session. Once the Committee has deliberated, the witnesses and members of the public will be invited back into the room and our oral evidence session will begin. If the Committee agrees to the programme motion, we will hear oral evidence this morning.
(3) proceedings on consideration of the Bill in Committee shall be taken in the following order: Clauses 1 and 2; Schedule 1; Clauses 3 to 7; Schedule 2; Clauses 8 to 15; Schedule 3; Clauses 16 to 18; Schedule 4; Clauses 19 to 22; Schedule 5; Clause 23; Schedule 6; Clauses 24 and 25; Schedules 7 and 8; Clauses 26 and 27; new Clauses; new Schedules; remaining proceedings on the Bill;
I am delighted to serve under your chairmanship, Mr Scott, and that of your co-Chair, Mr Caton. I am also looking forward to lively debate and discussion on the Bill with members of the Committee. I welcome to the Committee the hon. Member for Bradford South, who will be leading for the Opposition. He and I have debated a range of issues over the past few years. It is also a pleasure to welcome other Committee members. I know that a great deal of expertise and knowledge resides in the Committee, so I look forward to an informed debate around a number of the issues germane to the Bill. I underline again the Government’s commitment to dealing with terrorism and the responsibility that we hold for keeping citizens safe.
I believe that the programme motion provides plenty of time for our detailed scrutiny of the Bill. We will have eight sittings of line-by-line consideration after today’s oral evidence sessions. We believe that that will provide sufficient time, but we will monitor progress carefully to ensure that due and appropriate scrutiny is carried out.
I look forward to the scrutiny process. It was clear from our Second Reading debate that there are strongly held opinions about how the Bill should be taken forward, including views from different parties about what the emphasis should be. I look forward to listening to all sides of the argument.
Before we embark on our clause-by-clause consideration, we will hear today from a broad group of witnesses with a wide range of opinions and experience. Their expertise will assist our examination, scrutiny and detailed consideration of the Bill.
I welcome you to the Chair, Mr Scott, as well as Mr Caton, who will join us for subsequent sittings. I also welcome the Minister and Committee members. As the Minister said, the Committee is made up of Members
Examination of Witnesses
I would like to remind all Members that questions should be limited to the matters within the scope of the Bill. We must work strictly to the timings in the programme order that the Committee has agreed. I hope that I do not have to interrupt any Members—or, indeed, witnesses—mid-sentence, but if we are running out of time, I will not hesitate to do so. I start by calling Gerry Sutcliffe.
The first question to you, deputy assistant commissioner, is on the new role that the police will have in relation to the Bill. I am concerned that more resources will be required and that the police will have to face more issues. Do you think that that is practicable? What are the issues related to manpower and resources, and do you foresee any problems?
Stuart Osborne: The role the police will perform under terrorism prevention and investigation measures is exactly the same as that under control orders, in that it is for us to monitor and enforce the order, so that will
In relation to whether we will we be in a different place, the challenges will be greater, and the resourcing and policing techniques will need to be different. However, we are hopeful that we will be able to do our utmost to make sure that the risk does not increase.
Q 3 Mr Sutcliffe: You say that the duties will be similar to or the same as those under the present legislation. Are there any issues related to that? For instance, a number of convicted terrorists will be back in society next year because they will have been released on licence. Do you have any worries about the associations that might occur, given the opportunities that the Bill provides for individuals to associate with different types of people?
Stuart Osborne: Hopefully, the new Bill still has the ability to place restrictions on associations, but the issue will be the environment within which such associations may take place. Previously, with relocation, it was easy to identify the environment in which associations may happen. If a lot of people who are on the orders live in one close environment, managing that and looking at those associations is potentially more difficult.
Q 4 Mr Sutcliffe: Following on from that, there is the ability for relocation to be called into question under the new Bill. Does such people being in London for next year’s Olympics cause any concerns?
Stuart Osborne: Ideally, if people are at risk, the further you can keep them away from the point of risk the better. If people are all within one geographic location—and it might be that people do not stay in London; they might decide to go elsewhere—managing that will need more resources and a greater ability to intervene, should they get to the areas where we would not want them to be. The new Bill makes the provision to put in place exclusion areas for places that you do not want people to go to, so there is an ability to interdict at that point.
Mr Osborne, I want to ask a quick follow-up question about your earlier point about the business case that you submitted last Friday. Can you tell us the time scale for its consideration? When might you expect to hear?
Stuart Osborne: The draft business case was expected last Friday, which was the deadline date. We are due to hear back from the Home Office within the next couple of weeks, and we will pursue the final business case after that.
Q 8 Hazel Blears: If relocation was not available, what would be the extra cost of monitoring each existing control order to the police service? I know that it will be difficult to give a precise figure, but I am thinking about how many officers you would need, and what the resources and techniques would be.
Stuart Osborne: It is very difficult to answer. It is not only one measure inasmuch as the relocation is concerned, because the relocation is combined with a curfew, with an association, and then with the ability to restrict areas. That all adds up, so it is not simple. Essentially, if you wanted surveillance coverage for one person for 24 hours, that would require four surveillance teams, which is very expensive.
Stuart Osborne: I can provide those exact details to the Committee later on. Actually, we probably would not seek to do that just with personnel. We would look to find other ways of doing that more effectively. One issue with control orders at the moment is that we have managed to come to a style where we have been able to monitor and enforce them in an effective, efficient manner. We would need to look at how we could best do that in a similar fashion under the new TPIMs Bill. However, until we know exactly what the Bill looks like and how it will operate, it is difficult to say what additional resources would be needed and at what cost.
Q 10 Hazel Blears: How important do you think that the relocation provision is in making the control order or TPIM regime effective, and in giving you sufficient reassurance that you are able, as you said, to manage the risk to the public?
Stuart Osborne: The relocation issue has been very useful for us being able to monitor and enforce at the current time. Without that relocation, and depending on where people choose to live, that could be significantly more difficult. Where the choice of residence will be and how many people are within an area will affect the complexities, but there are different environments that make policing easier or more difficult. People could choose to live in an area that was difficult to police in normal circumstances, and that would be even more difficult to police in relation to monitoring control order subjects.
Q 14 Hazel Blears: Do you feel that the TPIM regime will be as effective in managing the risk? You say that you will “hopefully” be able to protect the public—we all hope that that will be the case—but do you feel that the regime will be as effective as the current regime in protecting the public?
Stuart Osborne: In terms of policing, we are comfortable with the current control order regime because we know how it works and we have become accustomed over time to being able to use it effectively. The new freedoms that will be given to individuals will significantly increase the challenges that we have to face, and managing those challenges will increase the resources that we need. The degree to which we are successful in managing them depends on both the extent of the Bill and the additional resources that we get.
Q 15 Hazel Blears: I have a final question about the case of CD, who was subject to a control order and relocated just months ago. That condition was appealed and upheld by the court. The possibility is that somebody like CD, who presented a significant challenge—the prospect of a Mumbai-style plot—and was actively seeking to gather firearms, would not be subject to a relocation condition in future. Does that cause you concern?
Stuart Osborne: The individual you are talking about lived in London, in a difficult policing environment. It would be more difficult to manage that person if he returned to the residence that he was in before he was moved.
Stuart Osborne: It depends on the additional resource that we get to enable us to combat the risk. Is it concerning that he would be in that environment? Yes, it is. Does that mean that it is unmanageable? Potentially not.
Q 21 Dr Huppert: Moving on to look at what the Bill says about TPIM notices and the role that the police will have, there is supposed to be a new duty—you said that it was not changed much—for the Secretary of State to consult the chief officer of police about prosecution. What criteria would you use to try to prosecute those who are accused of terrorist activities?
In terms of the amount of prosecution, we would look for any breaches in the legislation and the terms and conditions that have been written. It would be very much the Crown Prosecution Service that we would work with in terms of defining whether prosecution was possible and whether we had the sufficiency of evidence to take the prosecution forward.
Q 22 Dr Huppert: This is perhaps a question partly for Mr Starmer. What would the bar be for prosecuting somebody for terrorist offences? The Government’s drive is to prosecute wherever possible. Would you use the threshold test? Would you use the CPS full test? How would you try to guide a chief officer?
Keir Starmer: The test would be precisely the same for a terrorism-related case as it would be for any other. The question would be, therefore, whether there is sufficient evidence to provide a realistic prospect of conviction and whether a prosecution would be in the public interest. The second question pretty well answers itself in a terrorist case. The critical question is always whether there is sufficient evidence.
If necessary, we use the threshold test. We prefer not to, but it is one that we can use. We would not approach a case where there may be a control order in any different way to any other case. It is precisely the same test. The critical question in such cases is sufficient “(admissible)” evidence. That is really where all the work is done in such cases. That is the focus of our examination of the files.
Q 23 Dr Huppert: Your predecessor has said in his report that he thinks there could be much more admissibility of some of that evidence—intercept and so forth. What is your position? What could be done to close the evidence gap between the evidence that the security services apparently have and the evidence that could be used in a normal judicial process?
Keir Starmer: I think it is important to focus on what the difficulties are before coming to whether intercept is the answer. The difficulties that we confront in these cases are as follows. First, what we are looking at is very often an intelligence-based file, and therefore is not a file that has the sort of evidence that you might find in other cases. That brings into sharp focus the issue of admissibility: where has the intelligence come from? Is it a source that can sensibly be put into the public domain, or would that put other sources and individuals at risk? Is it coherent? Often, the intelligence picture
Even when there is evidence—something in addition to the intelligence that we can use—the question is then, is there enough to provide that realistic prospect of a conviction? If there is, we would prefer to prosecute, because we strongly believe in the priority of prosecuting, and we have prosecuted a number of cases, as everybody knows.
There is one additional group which warrants some consideration. Of the 12 control orders which are now in place, three are what we call post-acquittal control orders, meaning that we have taken the decision historically that there was enough evidence to bring proceedings, and the judge has very often taken the view that there is enough evidence to leave the case to the jury, but the jury has none the less acquitted; there is then an examination of the file. In these cases, the question is slightly different: there was obviously admissible evidence—that was the base upon which the case was put forward in the first place—so the question is, what is there, post-acquittal, that might cause concern to those who are assessing risk?
Returning to your question—how do we plug those gaps?—some of them are difficult to plug, because if you are dealing with intelligence, you are dealing with intelligence. As far as intercept is concerned, my own position is that, in principle, I am in favour of intercept evidence being admissible in evidence, subject to two caveats. The first is that there must be a fair trial, and therefore the disclosure issues raised by intercept evidence have to be fully thought through—and they are not straightforward, as everybody appreciates. Secondly, there should be a caveat that the use in any given set of circumstances or set of cases should not significantly impact on the ability of the security and intelligence services to do their job. But, in principle, I am in favour.
There is a difficulty in assessing whether or not intercept would have made the difference in historical cases, because, when historical cases were prepared, intercept evidence was not admissible, and therefore it was never part of the thinking for an operation that you would be obtaining admissible intercept evidence. To look at cases now and say, “Would it have made a difference?” is an exercise, but in my view a pretty limited exercise.
Q 24 Dr Huppert: I am very interested in your comments about post-acquittal cases, where people have specifically been acquitted by a jury. May I ask one more question? There is an argument about whether the measures listed in, for example, schedule 1 could make it harder for the police to gather evidence. Part of the idea of relaxing the rules on electronic communications is to make this easier. What is your view on the balance of that? Does a TPIM, or a control order, actually make it harder to prosecute?
Keir Starmer: I think we need to be reasonably clear about this. The chances of getting admissible evidence for a prosecution after an order is put in place are much
Q 25 Eric Ollerenshaw (Lancaster and Fleetwood) (Con): Following on from Hazel Blears’s question on relocation, did you say that if you get the additional resources you can deal with the relocation issue?
Stuart Osborne: It depends where the relocation is and how many people are relocated to that area. The relocation was a very good way of managing risk. If we do not get the relocation, I think the risk overall that needs to be managed increases, and it therefore depends upon the resource that we get to manage that risk and whether we will be able to balance it out or not.
Q 27 Shabana Mahmood: Mr Osborne, you said earlier in response to a question from Hazel Blears that you are very comfortable with the current regime because it has bedded in and everybody knows what they are doing. With the Olympics next year, how long will it take for the new regime to bed in—what time scales are you working to at the moment?
Stuart Osborne: To get the resources that we anticipate we need will take more than a year, in terms of being able to get people trained and to get the right equipment. Until we have got that, we will not be able to start to bed things in and see how it works and how it transpires. It also depends on how many people actually go on to the TPIMs regime and how many people come off it. There are a lot of inter-dependants there. The control order put people in the protect and prepare part of the Contest strategy. TPIMs moves them back into the pursue element of the strategy, which is a slight paradox because it was only due to the failure to get sufficient evidence to prosecute them that we moved them into the control order in the first place. So there is a bit of a paradox there.
Q 28 Stephen Phillips (Sleaford and North Hykeham) (Con): May I also follow up on the relocation aspects which Ms Blears raised with you? From recollection, the Government said that they had consulted the security services before drafting and publishing this Bill. Are
Stuart Osborne: No. I think the risk will increase if we lose the ability to relocate, but depending upon the sufficiency of resource and the other elements wrapped around that, we may be able to manage that.
Keir Starmer: I am not sure that is a question for me to answer; that is a question of political judgment. Our role is at the beginning of the exercise to carry out the assessment we are required to carry out, with a view to taking a decision on whether we can prosecute, and then at a later stage—if it arises—consider breaches and whether they can be prosecuted. That is the extent of my current ambit.
Q 30 Stephen Phillips: If one looks at the previous legislation, it essentially enabled the Government to implement measures until such time as they were struck down by a court. This Bill contains a series of measures which are enumerated within it. What are the advantages and disadvantages of that from your perspective?
Keir Starmer: Again, that is not an issue that I have to deal with. Assessing the risk and taking the decision whether to impose a control order is not a decision for me. I suppose there is a question of whether or not the sort of conditions that are in the Bill would facilitate an investigation, and I have given an answer to that. I am absolutely clear that we will review as often as necessary during the currency of an order, we will prosecute wherever there is sufficient evidence, and if it is possible for an investigation to be furthered during the currency of the order, then that is a good thing. We would welcome that and if that throws up evidence, even in a rare case, that takes us across the threshold, and that is to be welcomed. I certainly do not want to be seen standing in the way of that, but that is the extent to which the conditions affect the decisions that I have to make.
Stuart Osborne: I think I said it would take a year to procure and train sufficient additional assets before it would be ready to do that. We have to order some of the assets so that they are made in advance. To train a surveillance officer and then have them fully able to operate in a challenging environment probably takes at least 12 months before they are deployable. Once they are deployable, they have to work within the environment under a new set of regimes that will need to bed in.
Stuart Osborne: The control orders with the condition of residence were in a policing environment that was much easier to work within. Having a curfew reduced the number of hours that people were out of their
Q 33 Mr Tobias Ellwood (Bournemouth East) (Con): The threat to the Olympics has been mentioned a number of times. People might be misled in reading the transcript into thinking that the major threat to the Olympics from a terrorism perspective comes from those who are on control orders. Will you place in perspective and a slightly wider context your concerns about a terrorist threat against the Olympics, comparing those on control orders with those who you do not know anything about at all?
Stuart Osborne: I can only tell you the overall threat is at “severe” at the moment. The Olympics will be in a very challenging area in east London. A lot of people who are on control orders have come from the area initially, and so moving them back will create additional challenges for us. It is difficult to say whether they provide a greater threat than cells or groups that have yet to come to our notice or on which we have yet to receive intelligence.
Stuart Osborne: ACPO has been involved in the counter-terrorism review in general, and a number of letters have been written and meetings held. Regarding TPIMs, we have been heavily involved in conversations about how that will be formed and the potential implications of various parts of the Bill as it has gone through different stages of drafting.
Q 35 James Brokenshire: Would you comment on the provisions in the Bill relating to specified residence? Schedule 1 includes a provision which may require someone to reside within a specified residence in the locality where they live. Is that helpful and how might it assist with some of the challenges that you have identified this morning?
Stuart Osborne: A specified residence is very helpful, because it will give you somewhere where people are supposed to be based, rather than being somewhat nomadic. The question of where that residence is is more complicated. Some parts of the country are far more challenging for general policing and counter-terrorism policing. If you have a number of people all within the same area, the risk of saturation from surveillance units is quite big. There are other areas where using technical assets such as CCTV cameras and other issues that we may wish to explore might become problematic, as they will be very visible. Therefore, it is very useful to have that condition if there are too many people in the same area and because areas that are undesirable for policing activity create additional challenges.
Q 37 James Brokenshire: Picking up a couple of points regarding prosecution, some people outside this room may think that prosecution is not pursued to the fullest extent or that in some way TPIMs or control orders may be seen as an easier thing to get and therefore prosecution is not pursued. Would you comment on the work the police undertake with the CPS to advance prosecution wherever possible, and is that the preferred option?
Stuart Osborne: Yes, may I say very clearly that prosecution is always the preferred option? Often it is only after months of investigation that the police are able to produce evidential material that results in the consideration of a control order or a TPIM. Throughout all of our CT investigations we heavily engage with the Crown Prosecution Service where we think that prosecution may be possible. Before anybody is placed on a TPIM, it is mandatory that we consult the CPS to ensure that a prosecution is not possible. The new measures involve the CPS to a much heavier degree in looking at the sufficiency of evidence.
Keir Starmer: May I briefly walk you through the process? Looking at the current regime, we are now involved from the outset if consideration is being given to whether a control order should be made. The deputy head of counter-terrorism, Deborah Walsh, is immediately notified, and she then allocates one of the prosecuting lawyers from her division who, day in, day out, prosecutes terrorism cases before the courts. They have a great deal of experience, as everyone here understands.
If a decision is made that a control order may be imposed, the exercise begins of reviewing the available material to assess whether it meets the code test that I adumbrated earlier. That approach is no different from the approach that Deborah Walsh and her team take week in, week out, on numerous other terrorist operations. They are in the business of reviewing material to consider whether prosecutions can be brought. If a prosecution can be brought, that is the priority and a prosecution is brought. We are firmly committed to that. If a prosecution cannot be brought, we give brief closed reasons to the relevant authorities. The allocated lawyer then remains with the control order in question. Deborah Walsh sits on the quarterly review meetings that look at all control orders. They are reviewed either if there is new material or if renewal is suggested, and we go through the same exercise. That exercise, the second time round, will include consideration of any of the material that has been led in the control order civil proceedings. At each stage we are applying the code test. So that is the extent to which we are involved in the process. We have found it useful to have an allocated lawyer stay with the case during its lifetime.
Deborah Walsh: Because we allocate a lawyer at the beginning of the case, they see all the intelligence material. Throughout the life of the control order, they continually review new evidence. They do not need to look back at the intelligence material, so there is a consistency of approach.
Q 38 Mr Sutcliffe: I want to pick up what the Minister said about ACPO’s involvement in the development of the Bill. We would all prefer prosecutions to be the first route, and in the deliberations there is a view that access to technology may assist in getting a prosecution. What discussions have the police had with the authors of the Bill on developing technology and on individual access to technology by people on control orders?
Stuart Osborne: The point was made earlier that covert policing is at its most successful when people are unaware that it is taking place. To serve a control notice on someone and then provide them with designated equipment on which they can talk or communicate will create some challenges if we expect them to breach any of the rules. Additionally, if people have set communications, there will need to be some additional assets to monitor and retrieve those communications. Translation and other issues may go along with that, too. Once again we come back to an additional resource.
Q 39 Tom Brake (Carshalton and Wallington) (LD): Mr Starmer, may I bring you back to an earlier exchange with Dr Huppert? Is there anything in TPIMs that you think will allow more suspects to be brought to trial? If there is not, are there any other suggestions—apart from intercept, to which you have already referred—that you think the Government should take up?
Keir Starmer: I am not sure there is a particular provision that I could point to. It is quite clear that thought has been given to how one might use these measures to facilitate an ongoing investigation. The duties of consultation are slightly stricter than they were before, although the working arrangements that we have put in place go as far as the Bill. It is clear that some of the measures are designed to ensure that an investigation can continue if necessary. I am not sure there is a particular one I would point to. I think the thrust of that is something that I would support.
I am slightly sceptical as to whether new material will truly come to light post the order. It may in one case or another, but it is less likely. However, if this facilitates and we are all forced to focus, as we should be, on where there is any evidence that predates the order still undiscovered that can be found to bring a prosecution based on those historic facts, then I welcome that and would certainly work within that framework and in that spirit.
Keir Starmer: No. We were fully involved in the review; we were given an opportunity to provide our views, for which we were grateful. There is not anything by way of strict provision that we were suggesting should be in there that is not in there.
Q 41 Paul Goggins (Wythenshawe and Sale East) (Lab): Mr Osborne, you mentioned the exclusion measure. I wondered, from your experience, how wide an area might need to be covered for that measure to be effective. It might clearly be an individual building, but how wide might it go?
Stuart Osborne: That depends very much on the individual and what it is. Each of these TPIMs, or each of the control orders, is tailor-made for the individual concerned. One factor of control orders at the moment
Q 43 Ben Gummer (Ipswich) (Con): May I return to the Olympics, which have been raised by several Members? Mr Osborne, you said repeatedly that, given sufficient resources, you will be able to meet the risks posed by specified individuals. Specifically on the Olympics, given sufficient resources, as you have said you would require, would you be able to meet the risks posed by those individuals under TPIMs?
Stuart Osborne: I think I said that the risk would increase and, with sufficient resources, we would be able to mitigate that risk. To give you an assurance that we would be able to prevent that risk is not within my gift, I am afraid.
Stuart Osborne: No. I think what I said, or meant to say, was that the risk would increase and that with additional resources we would be able to mitigate that, hopefully to an area where it would not produce a threat.
Q 45 John Robertson (Glasgow North West) (Lab): After the terrorist attack at Glasgow airport, we became aware in Scotland that we were part of the terrorist area. We have talked about dealings with the Crown Prosecution Service. Do you have dealings with the devolved Parliaments, with Scottish law being different from English law? When you put out control orders—and when you are going to use TPIMs—does that happen under English law that may operate in Scotland, or is there some kind of cross-border relationship? That would, of course, also apply to Northern Ireland.
Keir Starmer: I can answer from the prosecution side, not from the control order side. We have obviously had to consider how we approach offences that take place both sides of the border. Building on the approach in the case you mentioned, we now have procedures in place with our colleagues in Scotland to ensure that we can deal quickly and effectively with issues that arise such as, not least, jurisdiction—where the evidence is and how you transfer it. That does not answer your question in relation to control orders, but certainly when it comes to criminal conduct, we have clear agreements and a good understanding with our colleagues in Scotland as to how we will approach those cases.
Stuart Osborne: And in relation to control orders, how wide they apply is something, once again, for the legislators. In terms of the policing requirement, however, the counter-terrorism unit in Scotland is intrinsically
Q 48 Hazel Blears: I wanted to ask Mr Starmer and Mr Osborne whether the idea of maximising prosecution and wanting to bring people to trial whenever possible is a new issue. Under previous legislation, it was always the case that when there was sufficient evidence, a criminal prosecution would be brought. I would welcome your confirmation of that.
Keir Starmer: The priority has always been prosecution. It remains as prosecution, and that is right in my view—and, I think, that of the vast majority of people. Linked to that is the question of how robust we are on decision making. I have described the process and the approach. Lord Carlile, who is following on after this session—he is moving on as well—reviewed the position for 2010 in his last report, which was published on 3 February 2011. The last sentence of paragraph 144 of that report states:
“The process is followed: I am satisfied that no control order has been made where a prosecution for a terrorism offence would have satisfied the CPS standards for the institution of a prosecution, in the period covered by this report.”
Q 49 Dr Huppert: Do you think that the mandatory High Court review of all TPIM notices will be advantageous for human rights and civil liberties? Do you think that the continued use of closed hearings and special advocates will continue to be against the interests of human rights and civil liberties?
Keir Starmer: That does not impact on the decisions that I make. The significance of the exercise in the High Court is that it is governed, among other things, by the Human Rights Act 1998, and therefore if there are inconsistencies between the substance or process and the requirements of the 1998 Act, they are teased out. That is exactly what has been going on for a number of years.
Stuart Osborne: In my experience, people are normally at the serious end of those criteria, such as those whom we believe would be involved in attack planning, or seeking to travel abroad either to train or to engage in attacks against coalition or other forces.
Stuart Osborne: There are people we come across who, while they would not want to get involved in any physical acts, are very keen to encourage others to do so and to support their activity. A control order or TPIM would be useful to move such people away from those whom they seek to radicalise or influence to do things that would be detrimental to the UK.
Stuart Osborne: Obviously, the encouragement will be evidence-based. Once again, it will be based on what they have said, done and procured. It is about the activity in which they have personally engaged.
Examination of Witnesses
Lord Carlile: I am Lord Carlile of Berriew. I was the independent reviewer of terrorism legislation from 2001 to 2011. I retain some roles in Northern Ireland, and I, too, am a former Member of Parliament, albeit with not quite the distinction of Lord Howard.
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
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.
Q 54 Hazel Blears: 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
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.
Q 57 Shabana Mahmood : 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.
Q 58 Dr Huppert : 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
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.
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: All I can tell you is that I have been a member of the Privy Counsellors committee for several years and we have been looking at this issue in extraordinary detail. We have not yet reached a conclusion, but the difficulties are formidable.
Lord Howard: I cannot. I think the Home Secretary indicated that she would like to make a statement on progress before the House rose for the summer recess, so I imagine that she will make a statement of that kind, but we would certainly not have completed our work by then.
Q 63 Mr Ellwood: If it goes the way that I am suggesting—I do not want to put words into your mouth—and you would like the Committee to go with its recommendations, how would that affect the use of TPIMs?
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.
Q 64 Mr Ellwood: 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.
Q 65 Ben Gummer: 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.
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
Q 67 Mr Sutcliffe: 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.
Q 68 James Brokenshire: 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.
Q 69 James Brokenshire: 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
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.
Q 70 Shabana Mahmood: 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
Lord Howard: I agree.
Q 71 Tom Brake: 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.
Q 75 Mr Robert Buckland (South Swindon) (Con): 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.
Q 76 Stephen Phillips: 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?
Lord Carlile: No, it will not make any difference at all, because the judges have worked on the basis of reasonable belief, rather than reasonable suspicion at the very least, in every single case I read.
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.
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.
Q 81 Ben Gummer: 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.
Q 82 Mr Sutcliffe: 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
Q 84 Mr Sutcliffe: 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 Howard: If the police evidence is that it will take them a year to prepare, that evidence has to be respected. Obviously, it is important that arrangements remain in place until the moment arrives when the new regime can be effectively introduced.
Q 85 James Brokenshire: 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.
Q 86 James Brokenshire: 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.
Q 87 Paul Goggins: 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—