Examination of Witnesses (Questions 20-39)
RT HON
JACQUI SMITH
MP AND SIR
DAVID NORMINGTON
KCB
24 JULY 2007
Q20 Mrs Dean: Home Secretary, you
said earlier about the importance of the Office of Security and
Counter-Terrorism. Could you say when it will be fully staffed
and functioning? Have there been any teething problems? Would
you like to say any more about the difference you feel it will
make?
Jacqui Smith: I might turn to
David for some of the detail about the staffing, but perhaps I
could take the last bit first. The aim quite clearly being set
out—and from what I have seen of the operation already I
am beginning to see this delivered—is that it will bring
a greater drive and more cohesion and strategic capacity across
government in order to bring together the work that is necessary
to fight terrorism. It will enable us to develop greater sophistication
in the way in which we spend money, frankly; the common assumptions
that we have across a range of areas where we are investing in
our counter-terrorism work; and it will ensure both better political
accountability and more of an opportunity through the capacity
that is there to plan strategically. That, of course, is dependent,
as you suggested, on making sure that we have the right people
in place, and that work is happening. We have relatively recently
recruited and a Director General is now in post. We have already
seen some important work in terms of developing both the senior
level structure and the accountability. The Research Information
and Communications Unit, which I think will play a very important
role across government in co-ordinating both the research and
the analysis and the communication around our work on counter-terrorism,
is set up at the moment in reasonably embryonic form, bringing
together staff from FCO and communities and local government and
the private sector. But that is an important start. My experience
in the last four weeks has been that that has already enabled
us to bring together the work that was already happening and be
confident that we are going to be able to refresh some of our
areas of our counter-terrorism work that I think need immediate
work. The things I was talking about with respect to "prevent"
is an important area where we have already started that work and
where I think this new machinery will enable us to have a much
more effective operation.
Sir David Normington: I think
we thought it was important that we could get the senior person
in place so that he (as it turns out) could build the senior team.
But in the meantime we have concentrated on putting together teams
who can develop the strategy, as the Home Secretary says, and
do some of the earlier work from the Research, Information and
Communication Unit. So we learn as we go along and we get some
work going; we do not wait until all the teams are in place before
the work starts happening. It will take through the rest of this
financial year to get the full numbers in place, but there is
work going on now in the key areas.
Mrs Dean: Have there been any teething
problems?
Q21 Chairman: Or do we work on the
assumption that there are always teething problems?
Sir David Normington: There have
not really been any serious teething problems in this area. There
are teething problems—and we have talked about them before—in
other areas, but there have not been any in this area particularly.
Q22 Mrs Dean: You may know, Home
Secretary, that the Committee decided to undertake a short inquiry
into the Government's latest counter-terrorism proposals. On 7
June your predecessor announced that there would be those proposals
and he promised a "fuller content paper" giving details
of these "in the next few weeks". Do you know when it
will appear?
Jacqui Smith: Yes. Tomorrow.
Q23 Mrs Dean: Can you confirm that
it will contain the material requested; that is, robust police
analysis in respect of three areas: pre-charge detention powers;
stop-and-search; and the current state of play with control orders?
Jacqui Smith: On pre-charge detention,
my predecessor said, which I think was absolutely right, that—
Q24 Chairman: We are coming to that
in a moment.
Jacqui Smith: Okay. What were
the other two areas? I am sorry?
Q25 Mrs Dean: The question was: Would
they be addressed in the content paper?
Jacqui Smith: I am confident that,
with the possible exception of control orders, the other two will
be covered.
Q26 Mr Benyon: Some time ago, the
Assistant Chief Constable Andy Hayman presented a scenario to
this Committee of a case which would prove the need for a pre-charge
detention period of greater than 28 days. Since he painted that
scenario, it has become a reality. Even with that, last year your
predecessor came before this Committee and said, "If someone
brings me a factually based case which illustrates that there
is an evidential basis greater than the last time it was taken
to Parliament, then I would be prepared to take it back to Parliament,
but that case has not yet been put." What hard evidence have
the police given you that the current 28-day limit is inadequate?
Jacqui Smith: One of the functions
of the paper we will be publishing tomorrow will be to keep an
analysis of everything we know about the complexity of plots;
the way in which the extension from 14 to 28 days has been used;
the experience that we have of—as I was questioned on earlier—the
international nature of the sorts of plots, for example, that
have been thwarted; and the nature of the type of attacks and
plots that we are looking at (for example, the very fact that
they are likely to be, in many cases, based around suicide bombing
and that they would cause disproportionate and terrible ranges
of damage were they allowed to go ahead). All of those things
create what I would argue is a trend of analysis towards a position
where it is very legitimate for us now to consider again the case
for going beyond the current situation of a maximum of 28 days
in terms of pre-charge detention. But I come back to the point
I made earlier: first, when we publish the document tomorrow,
it will outline what we now know about that trend across a range
of areas, and, secondly, it will not, if you like, plump down
at one particular solution for that. It will fulfil what we have
previously said is of significance, which is how we could ensure,
if there were to be any extension beyond 28 days, that that would
go alongside both parliamentary scrutiny and judicial oversight
but also consider some of the other options that have been put
forward by others as ways in which we might address the challenge
that certainly appears to me to come from the growing complexity
in the other areas of trend analysis that we will put out in the
paper tomorrow.
Q27 Mr Benyon: In Andy Hayman's scenario,
an imagined case, he talked about a complicated international
case, multiple defendants, different languages, using foreign
intelligence services at a time-heightened threat, with difficult
to collect evidence from IT and all these other sources. That
has all happened. I would like to know how the 28-day period has
copied with the reality of that. Lord West has been on record
as saying that we were right up to the limit but my information
from people who claim to know about these things is that 22 days
was adequate. I am no expert. I am not in the loop like you are
but I think Parliament really needs to know whether this 28 days
has been pushed to the limit or not.
Jacqui Smith: Parliament will
certainly know in very clear terms tomorrow. To a certain extent,
of course, we already know, but, yes, that period of time has
been pushed. For example, we already know that in recent operations,
in terms of going beyond 14 days, one person was held for between
14 and 15 days and then charged; four people were held between
19 and 20 days and then charged; and six people have been held
between 27 and 28 days and three of those were charged. There
is already, if you like, evidence of us going up to the point
of 28 days, but the argument that I am also making is that, by
definition, there is not a case up to this point where the limit
that Parliament has already laid down has been exceeded. But there
is certainly information—and we will spell it out tomorrow—to
go back to what you were saying about the sort of cases that Andy
Hayman raised, that recent alleged plots are more complex, contain
more product, whether or not it is phones or computers or witness
statements or house searches, than was the case when Parliament
considered this previously, and, as I suggested, that what we
know about international connections, what we know about the experience
of investigations up to this point, all give us at least a strong
view that the time is now right to reconsider whether or not and
how it might be necessary to allow longer than 28 days for pre-charge
questioning. That will be included in the paper we will publish
tomorrow.
Q28 Mr Benyon: Will you comment on
the ACPO recommendation that there should be an unlimited period
of detention without charge? Secondly, would you agree with me
that it is vital we know when evidence material to charge is available?
You can hold people for up to 28 days but the evidence material
to charge might have been available a lot earlier, so they could
have charged them earlier.
Jacqui Smith: Firstly, I will
say about ACPO that Ken Jones actually said, "ACPO are not,
have not and will never call for indefinite detention." He
did engage, as many others have, in a discussion about the sorts
of pressures that both those investigating and those who want
to bring to justice people involved in these plots have been under.
My view is that it is precisely because we want to engage people,
to continue in that discussion, to look at the analysis, to consider
the various different options, that it is right that we publish
the paper and continue the consultation that will come after tomorrow.
Q29 Mr Benyon: I am sorry, but he
actually said "for as long as it takes". Those were
his exact words.
Jacqui Smith: You will have to
ask him what he meant or did not mean by that, but he has told
me, in terms, that he did not mean indefinite detention.
Q30 Mr Benyon: Could you tell the
Committee about evidence material to charge. If evidence material
to charge is available at 27 days or 28 days, I agree with you,
it is pushing it to the buffers, but if evidence is material at
22 days and there is a considerable gap and they are not charged
until 28 days I think Parliament needs to know about that in terms
of this debate.
Jacqui Smith: I am sure that will
be one of the things that will be part of the discussion as we
go forward, and, no, I am not in a position to tell you that today.
Q31 Chairman: Your predecessor, in
the work on consensus in the House of Commons gave the impression
that if he could not get agreement with the other parties for
going beyond 28 days he would not be pushing for that. Does that
remain Government policy?
Jacqui Smith: It remains my view
that we should be continuing to try to seek consensus. That is
precisely the reason why we will take the approach that we will
be taking tomorrow, which is to look at both the trend, as I have
suggested, to look at a range of alternatives for how we might
address the challenges that I think that trend brings, and why
I will continue, with this Committee and with others, to try to
reach a consensus on the way forward. In the end, however, I have
to say that I think it is right and has been right in the past
that the Government has taken a view about what is right for the
security of this country and the tools that both the police and
others need in order to tackle terrorism, but I do not think we
are at that point yet and at the moment I am completely committed
to maintaining that discussion and consultation as we go forward
in this area.
Q32 Chairman: There has been a cynical
view, which I hope has no justification, that ACPO and Lord Carlile—or
this is what it amounted to—have been put forward in order
to soften up Parliament to increase the 28 days.
Jacqui Smith: Neither am I cynical,
nor do I think there is much that could be done to soften up you
lot—us lot.
Q33 Bob Russell: Home Secretary,
when you come forward with proposals, will you take into account
what our European neighbours do in these matters?
Jacqui Smith: Of course, that
would be one of the areas that we both have done and will want
to look at. For example, I know there has been interest in the
French system of examining magistrates. One of the things that
we will do alongside the information that we are publishing tomorrow
will be to publish some research that has been done on the French
experience. Of course, we would want to look at experience from
other European and wider countries, but we will need to look at
that in the context both of the particular threat and particular
complexities that we face here and our particular legal system.
Every country, if you bring all those things together, is unique
and this will need to be a discussion that we have whilst bringing
in evidence from abroad but which nevertheless is about us considering
both the challenge and the ways in which we might solve that for
the UK.
Q34 Chairman: Could I just say, Home
Secretary, although I am sure you are aware of it and have quite
likely read the report, that the Home Affairs Committee very recently
came to the conclusion that there was no justification at this
stage, whatever may happen in the future, to go beyond 28 days.
I am sure that is part of your homework.
Jacqui Smith: Not only have I
read the report but I have heard you, Mr Chairman, make the case
on that on several occasions.
Chairman: I hope that has not changed
your mind in favour.
Q35 Mr Browne: Home Secretary, I
would like to ask two separate questions on two very specific
aspects of this debate. The first is control orders. You are probably
fed up with people saying "your predecessor said" but
your predecessor did take a very strident view on this matter
and others. He always maintained that control orders were an absolutely
essential tool within trying to combat terrorism but we have heard
of many instances where they have proven to be inadequate. I think
about one third of the people who have been subjected to them
have absconded and there has been difficulty in finding them again.
Would you give us a sense of your thinking at the moment on control
orders and whether they are a satisfactory way of addressing this
problem or whether they have too many clauses and are a halfway
house between trying to convict somebody and leaving them as a
free person? We are trying to explore control orders. Do you think
they work? How can they be improved or modified?
Jacqui Smith: My predecessor said,
if I remember rightly—and I strongly agree with him—that
when it comes to tackling terrorism and protecting the public
the first priority will always be to catch people and to convict
them. In a sort of list of preference, the next option, where
it was not possible to convict somebody but where they were not
a UK citizen, would be to deport them, for example. Very much
the third option, but nevertheless an important tool, is that
of control orders. It has never been the case that the Government
has attempted to argue that control orders are a perfect solution.
It is precisely because they are imperfect that we are looking,
through the representations that we are making, through recent
court cases, to find ways in which we can strengthen the provisions
that we are able to put around control orders, taking action both
with respect to what more we need to do to be able to track and
convict people—and this is the previous conversation that
we have had—and also what more we need to do to be able,
where it is appropriate, to deport people. That is the reason
why of course we have taken action on developing memorandum of
understanding with various countries and why we are continuing
to make representations alongside others with respect to certain
cases that will enable us to have a greater opportunity to avoid
the courts striking down decisions about us deporting on the basis
of Article 3 of the ECHR. All of those things are important. But,
at this moment in time, is it my view that we still need to have
control orders? Yes. Is it my view that they need to be strengthened?
Yes.
Q36 Mr Browne: Thank you. That is
a very full answer. The other area I would like to ask about is
telephone intercept evidence being used in court. You will be
familiar with the arguments, which is that it is currently used
in many comparable countries: Canada, Australia, South Africa,
New Zealand, the United States and others. Will you give us an
update on where we have got to with the Privy Counsellors' review
of telephone intercept evidence and when we might expect to have
progress one way or the other on any developments that are taking
place?
Jacqui Smith: One of the difficulties
in this area is that the technical issues around intercept go
much broader than simply telephone tapping. That is part of the
strength of the capability that we have in this country. Secondly,
where our particular circumstances differ from some other countries,
as well, is with respect to the combination of our common law
legal system, our stringent disclosure regime in courts and, quite
rightly, ECHR considerations. It is the bringing together of those
alongside the current capacity that we have in our interception,
alongside the need to protect that, which I think means we face
a unique set of circumstances that are not faced elsewhere. With
respect to the progress on the Privy Council review, my predecessor
of course announced that we would set that up. I suspect I am
not giving away too much to the Committee by saying that we would
certainly hope to be in a position where we will be announcing
considerable progress on that in the near future.
Q37 Margaret Moran: Are you convinced
that RIPA currently do as much as they could do in this area and
what do you say to the argument that the problem will not be so
much the argument per se about intercept but the fact that
the courts will require to see all evidence before they will consider
one element that is pertinent to the case at hand?
Jacqui Smith: What you have identified
there are two of the issues that are part of the reason why this
is not an easy solution. Trust me. If somebody had come to me
or any of my predecessors and said, "Here is the solution
to convicting more people who are alleged to have carried out
terrorist attacks" I or any of my predecessors would have
absolutely leapt at it. What people have said is that there are
considerable challenges both in terms of our legal system and
our ability to carry on doing the work that has been so important
for our intelligence agencies and others in going down this route.
It is in order to really get into the details of those and to
look at whether it might be possible to overcome them that the
Privy Council review has been set up.
Q38 Mr Clappison: You have very understandably
had a focus on security but I would like to ask you about migration
which is one of your key responsibilities in the new Home Office.
You will be aware that there is serious public concern about the
present level of migration into this country which has substantially
increased in the last ten years. For your part, are you content
with the present level of migration?
Jacqui Smith: You are right that
we have spelt out as one of the four strategic areas for the work
that we are taking forward on the whole area of immigration how
we manage migration in order to ensure that it maximises the benefits
to the UK. That is why not only have we made that a strategic
objective; we will, in setting up the Migration Advisory Committee
and introducing a points based system, make sure that we can be
clear that those people who are coming to this country are doing
so on the basis of the contribution that they can make to the
economy and why—it has already met—it is also setting
up the Migration Impact Forum that will look very seriously at
the impact, both good and bad, that migrants into the country
can have.
Q39 Mr Clappison: What do you think
about the present level of migration?
Jacqui Smith: What is important
is that we look at how, from now, we consider the impact that
migration is having. Is it having an impact on our communities?
Yes, it is. Some of that is good. Some of that brings areas of
concern, particularly for public services. I know, James, that
what you want me to do is to give you a headline that says, "Yes,
too many people have come" or, "No, too many people
have not come." I am not going to do that. What I am going
to be clear about however is yes, there are impacts on our communities.
We as a government have recognised them. That is why we are putting
in place not only the way in which we are controlling immigration
and managing it but also serious cross government work on the
impact that has on our communities and on public services.
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