Examination of Witness (Question Numbers
160-164)
SIR KEN
MACDONALD QC
10 NOVEMBER 2009
Q160 Ms Buck: Your sense is that
this is an inability so far to extricate themselves from the dilemma
they are in, not, in a sense, a weighing up of the pros and cons
of various alternatives and seeing practical measures to introduce
in each of them so great that we are not yet in a position to
be able to offer an alternative.
Sir Ken Macdonald: I am sure that
is a part of it. I do not mean the Government is sitting there
staring into the headlights like rabbits. They obviously are thinking
about how they can get out of this and what alternatives might
be. The trouble is they have to come up with an alternative that
is going to be acceptable to the courts. If anything which represents
a serious interference with liberty is not acceptable to the courts,
it is rather difficult to see what else they can go for, other
than doing everything that can possibly be done to mount prosecutable
cases against individuals who represent a serious risk.
Q161 Mr Clappison: You are very fair
in the difficulties which you ascribe to the Government in the
very understandable dilemmas that they faced and the reaction
which you had yourself. Going back to the question about deportation,
you obviously have a strong view about that. Nobody wants to see
people exposed to torture and treatment. Do you think there is
anything worthwhile in exploring guarantees, given for people
who can be deported back to another country to ensure that their
treatment in another country does not contravene human rights?
Sir Ken Macdonald: Yes, I do.
That is part of the Government's duty. The Government has a Foreign
Office and it has intelligence services and it has ambassadors
abroad, and it is clearly in a position to negotiate with foreign
countries and ought to be in a good position to determine whether
treaties which it enters into are likely to be adhered to by other
countries. I should have thought that if the Government enters
into a treaty with another country guaranteeing the safe treatment
of individuals who are going to be deported, the Government should
be given a high degree of respect for its view as to whether that
treaty is likely to be upheld or not. The Government should be
in the best position to make that determination—I should
have thought, in many circumstances, in a better position than
the courts. As I say, the Government has a diplomatic service
and intelligence agencies and all the rest of it. Assuming the
Government enters into those negotiations with good faith—and
I am sure that it does—if it concludes a treaty with a foreign
jurisdiction, it seems to me that that treaty should be accorded
a high degree of respect in this country and indeed by the courts
in this country.
Q162 Mr Winnick: Sir Ken, now that
you can speak more freely, having given up carrying out your duties,
if I may say so, in such a distinguished way for those five years
you were the Director, bearing in mind the acute danger that Britain
has faced from the latest terrorist threats over the last nine
or ten years, how far do you feel there has been, if there has
been, a serious erosion of civil liberties in our country? I assume
that you recognise the necessity of those measures which have
been brought in. How far has there been any serious erosion of
civil liberties?
Sir Ken Macdonald: I think we
avoided the most serious erosions that we might have suffered.
My experience was that the Government was not composed of conspiratorial
figures who wanted to destroy liberty; it was composed of people
who were genuinely wishing to respond to serious security threats
and making very difficult and fine judgments in some areas—42
days would be one, and some of the terrorism legislation on the
fringes, encouraging terrorism and so on, are others. But we have
managed to avoid any diminution of our due process principles.
We maintained open trials. We avoided vetted judges, we avoided
vetted lawyers, we avoided special courts and we avoided changing
the rules of evidence, for example, on the burden of proof. We
managed to protect the integrity of our trial system in the face
of quite a lot of pressure at one time. In 2004 it should be remembered
the Prime Minister floated the idea of reducing the standard of
proof in criminal cases. We said publicly that we cannot be sending
people to prison in the face of reasonable doubts about their
guilt. There was a genuine conversation between the Government
and others, and in the end—and this is my personal view,
obviously—the Government did a pretty good job, but it did
it within the context of parliamentary democracy and all of the
pressures that came to bear upon it in this Place and outside.
I think we broadly came out of it with a sense that our system
was working.
Q163 Mr Winnick: Partly due to you,
Sir Ken.
Sir Ken Macdonald: No, I do not
think so.
Q164 Chairman: Earlier in evidence,
I put to Assistant Commissioner Yates that the Home Secretary
had said last week we had perhaps been "too draconian"
with some of the measures that were adopted following the London
bombings. Assistant Commissioner Yates said he disagreed with
the Home Secretary. Do you think the Home Secretary was right?
Were we too draconian?
Sir Ken Macdonald: Yes. I think
he was absolutely right. Looking back in years to come, I think
people will say that, whilst we protected the fundamentals, at
the edges the Government at times wanted to go too far. I repeat
what I have just said, that it was because of the parliamentary
context and the public context that the Government was dissuaded
from doing so and the Government was sensible enough to be dissuaded.
That is a good thing.
Chairman: Sir Ken, thank you very much
for coming today.
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