UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE
To be published as HC 675-i

House of COMMONS

Oral EVIDENCE

TAKEN BEFORE the

Home Affairs Committee

The Government's Review of Counter-Terrorism

Tuesday 14 December 2010

Lord Macdonald OF RIVER GLAVEN QC

Evidence heard in Public Questions 1 - 39

USE OF THE TRANSCRIPT

Oral Evidence

Taken before the Home Affairs Committee

on Tuesday 14 December 2010

Members present:

Keith Vaz (Chair)

Nicola Blackwood

Mr Aidan Burley

James Clappison

Lorraine Fullbrook

Dr Julian Huppert

Steve McCabe

Alun Michael

Bridget Phillipson

Mark Reckless

Mr David Winnick

________________

Examination of Witness

Witness: Lord Macdonald of River Glaven QC, Independent overseer of the review of counter-terrorism and security powers, gave evidence.

Q1 Chair: This is a one-off inquiry into counter-terrorism, looking in particular at the Government’s review of counter-terrorism policy. Could I refer all those present to the Register of Members’ Interests, where the interests of all the members of this Committee are noted? I welcome Lord Macdonald of River Glaven to the dais. The last time you were here, you had just ceased to be the Director of Public Prosecutions. On behalf of the Committee, may I congratulate you on your elevation to the other place?

Lord Macdonald: Thank you.

Q2 Chair: Were you surprised when the Home Secretary asked you to conduct this supervision of the review, bearing in mind your very strong views on certain aspects of counter-terrorism policy?

Lord Macdonald: No, I wasn’t surprised. I had a conversation with her when it was first suggested that I should do this, so that I could understand the role and the extent to which I would have a free hand to exercise my judgment. I was reassured that that would indeed be the position, so I was very happy to do this.

Q3 Chair: As far as the process is concerned, you are, in effect, the supervisor. The day-to-day work is being done by Charles Farr, whom we will be seeing next week. Are you supervising on an ongoing basis, or does this role kick in right at the end of the process, when you look at a report?

Lord Macdonald: I am not sure "supervise" is the right way of putting it. As you know, this review is being conducted by the Office for Security and Counter-Terrorism, which is a division within the Home Office. My role is to provide reassurance that they have obtained all the appropriate evidence, that they have considered that evidence in a fair way, and that their conclusions are balanced. I have met with the review team, the heads of the various security intelligence agencies and the police, all the relevant NGOs, and many members of the public, and I have considered and examined the briefing notes that have gone from the review to Ministers. The next stage will be that Ministers will come to decisions, a review document will be drafted, and I will prepare a report on the process on that document and on the conclusions. I think my report will be laid before Parliament as a Command Paper simultaneously with the publication of the review.

Q4 Chair: But can you prod Charles Farr, the person actually conducting the review? Can you tell him you think that he should take evidence from different witnesses, or that there is not enough evidence? We know that Liberty has given evidence because they published their submission, but we don’t know any of the other organisations that have been involved.

Lord Macdonald: We have a very good and frank relationship, and I can indeed do those things. Of course, I have made suggestions and comments on the material as that material has come in, and I have made suggestions and comments on the briefing notes which have gone to Ministers. I think that is what I’m there for, and that is what I have been doing.

Q5 Chair: I assume your views on two of the key elements-control orders and pre-charge detention-are as they have been expressed to this Committee in the past. You are against control orders, or you feel that they are perhaps not the appropriate remedy for what is required, and I think you told this Committee when you last appeared before us that you favoured, at that stage, no increase on 28 days’ detention. Taking them separately, is it still your view that control orders are inappropriate?

Lord Macdonald: I have come to this review with as open a mind as possible, and I don’t think it would be right for me at this stage, if you’ll forgive me, to express my views in the middle of this review process. My views will be contained very clearly in the document which I shall be preparing once the review is complete.

Q6 Chair: Of course I understand that, but you have given evidence to the Select Committee on what your views are. What they might be at the end of the review is a different matter, but you are on record to this Committee in evidence in November 2009, and before that, and you were very, very clear. You welcomed the increase to 28 days from 14 days, which you said was not sufficient. This is a direct quote: "We are, on the basis of what has occurred since then, satisfied with 28 days. We have not had any cases which would require a longer period than that and indeed only one case, which is very well-known involving an airline pilot", and you go on to discuss that case. You have said, as a prosecutor, that you felt that the 28-day period was useful and effective. So you told this Committee that you opposed 90 days and you were satisfied with 28 days. I assume that just because you are a reviewer-and of course you are a member of the other place as well-your personal views haven’t changed on control orders and the detention period.

Lord Macdonald: Can you remind me of the date of that evidence?

Chair: November 2009.

Lord Macdonald: Yes. That was the evidence that I gave.

Q7 Chair: Yes. So your views haven’t changed?

Lord Macdonald: I really don’t want to be drawn into saying what my views are at the moment, if you’ll forgive me, in the middle of the review. I don’t think it would be appropriate for me to do that. I have tried to come to this process with an open mind. A great deal of evidence has been acquired-a great deal of evidence that wasn’t available at the time that I last gave evidence-and I’ve been trying to approach the evidence that I’ve seen with an open mind and come to fair and balanced conclusions about it. I don’t think you should make any assumptions at all about what my views are at present.

Q8 Chair: This is a Committee of the House.

Lord Macdonald: Yes.

Q9 Chair: And you are conducting an inquiry that, eventually, will be laid before Parliament. I think that’s what you said, didn’t you?

Lord Macdonald: Yes.

Q10 Chair: I think it is appropriate for the Committee to ask someone who is supervising a review whether or not their views have changed since they last gave evidence to the House, unless you are telling this Committee that at the end of this inquiry, as a result of what you have seen as evidence to this inquiry, you might change your views.

Lord Macdonald: That’s obviously possible. It is obviously possible that will happen.

Q11 Chair: It is possible that you might change your views?

Lord Macdonald: It is obviously possible, in the light of evidence which has been gathered by this very extensive inquiry, this very careful inquiry, that one’s views will change. After all, one of my purposes is to see precisely that people within Government and people within the Agencies come to this process with open minds so that they, too, are prepared to change their minds. If someone comes into this sort of process saying, "My mind is made up", there’s no point in the process.

Q12 Chair: So you are willing to be persuaded on control orders and the detention period?

Lord Macdonald: Of course.

Chair: Thank you.

Q13 Mr Winnick: Lord Macdonald, of course I appreciate what you have just said to the Chair. You will be aware, of course, that your objections in your previous role to an extension beyond 28 days were widely quoted, indeed by myself, for that matter, on the Floor of the House on numerous occasions. When you say you have an open mind, presumably we can work on the basis that that open mind may come to the conclusion that reverting to 14 days may be a possibility.

Lord Macdonald: It is obviously a possibility. Indeed, the Home Secretary indicated, when she announced this inquiry to the House, that it was her preference.

Q14 Mr Winnick: I won’t press you further because all of us round the table understand your position as the reviewer of the present legislation. Lord Macdonald, I don’t know whether this will come within your remit, but in the last 24 or 48 hours allegations have been made by the parents of the very deluded person who blew himself up in Sweden that it was as a result of coming to this country, and presumably being involved in the education process, that he was indoctrinated with ideas whereby, as we know, he meant to commit mass murder in Sweden, if he could get away with it. As part of the task which you have been set, will you be looking into aspects of whether, in Britain, there is any sort of process where it is easier than in other Western European countries for people to be so indoctrinated with such poison and desire to become a mass murderer?

Lord Macdonald: This is obviously a matter of very great concern. It is not part of the review which I am overseeing, which is looking at six discrete areas. That would come within the ambit of the Prevent strategy, which is subject to a separate review, I think by Alex Carlile. But I am certain the point you make is a very serious one and it needs very serious examination.

Q15 Mr Winnick: Presumably you welcome the fact that the person concerned, whose loss we will not miss, needless to say, was expelled from the mosque in Luton for his notorious extremist views.

Lord Macdonald: Yes. I think that is very reassuring and commendable.

Q16 Dr Huppert: It is very tempting to ask a whole series of questions about where the review is actually going and what is coming out, but I understand your reticence to talk about details. I would observe that I hope the security services come in with as open a mind, and with as much preparedness to change, as you are displaying here. I hope that is the case.

Lord Macdonald: I’m sure they will.

Q17 Dr Huppert: Can I ask about the process of the review, because it has taken longer than I think many of us anticipated when it was set up?

Lord Macdonald: Yes.

Q18 Dr Huppert: Is that because there is a lot of evidence being taken or is that because there are internal arguments which make it hard to conclude? What is causing that delay?

Lord Macdonald: There has been a lot of evidence, and the review has sought to take views from as wide a section of the public as possible. Apart from approaching, obviously, Government agencies and Government Departments and all the NGOs, there have been a series of public meetings around the country. Many members of the public have come forward. Many sections of the community are very concerned. Photographers are very concerned, for example, about the extent to which they are being prevented from taking photographs. So some rather unexpected issues have arisen. These are very important matters of public policy and, clearly, very careful and considered discussions are taking place. That is as much as I can say. It is a matter of public knowledge that the publication date of the review has gone back two or three times, and we can safely say that it is now unlikely to be published before Christmas.

Q19 Dr Huppert: What’s the premise underlying the review? Is it starting off from saying, "What are the minimal requirements that one would need, from a blank slate, in order to provide security?" or is it saying, "Here are the things we have. Can we justify keeping them?" Where does it start from? What are the drivers?

Lord Macdonald: I think the latter. The idea that the coalition Government had was that we should examine counter-terrorism and security powers and see where we could roll back these powers, consistent with public safety. The sense the coalition had was that some of these powers were excessive and that we had got into a situation in recent years where we tended to legislate somewhat excessively. This is, in a sense, a check on what had gone before in order to determine whether some of this legislation could be rolled back, consistent with public safety.

Q20 Dr Huppert: The final conclusion of this will be a paper with proposed legislation? How far will this go, at the end of the review? Will there be further processes?

Lord Macdonald: I think there probably will be proposals for legislation. There may be proposals, as there often are, for further consultations, but I am sure there will be some proposals for legislation and some very concrete proposals coming out of this review one way or another.

Q21 Steve McCabe: Is it possible to indicate how much priority you are giving to the Regulation of Investigatory Powers Act as part of your review? You mentioned earlier people coming forward. Have you taken evidence from a number of people on that, and have you taken any evidence from local authorities who sought to defend their right to use it?

Lord Macdonald: We have received a great deal of evidence from local authorities about the way in which they exercise these powers and the usefulness of that exercise of power. We have taken a lot of quite impressive evidence from local authorities and, also, evidence from NGOs and individuals who are concerned that some local authorities don’t use those powers as well as they should. It is really a matter of sifting through the evidence and coming to a conclusion about where the balance lies. There is a lot of evidence on those topics.

Q22 Nicola Blackwood: Do you think that you have been able properly to consider the issue of control orders and the alternatives without considering intercept evidence?

Lord Macdonald: The Chairman will know that I have often given evidence to this Committee in the past calling for the urgent receipt of intercept evidence into our criminal trials and, if I may take the opportunity, I repeat that call again today.

Q23 Chair: You still have views on some things?

Lord Macdonald: I have views on everything, Mr Chairman.

Mr Winnick: Rather like us.

Lord Macdonald: I am just not prepared to express them. Intercept is not a part of this review, which is why I can express that opinion. I have no doubt at all that use of intercept evidence, in combination with other powers, would be tremendously effective in the field of terrorism as well as organised crime generally. Some people have said that intercept evidence is a complete answer to control orders. I don’t think that is right. I don’t think you can simply say that we can have intercept and then we don’t get anything else. I think you need a suite of powers. What the review is considering is whether control orders are powers too far.

Q24 Nicola Blackwood: But do you think that you need to be able to consider the role that intercept evidence might play to be able properly to assess the role of control orders and the suite of powers to which you refer?

Lord Macdonald: I don’t think so. It would be very helpful if we had the ability to use intercept evidence, but we can look at control orders and their efficacy and proportionality without considering the question of intercept.

Q25 Nicola Blackwood: Can I ask you a little about the nature of the outcomes? We all want to see the detail, but in the absence of that, do you think that you have produced or will produce something which is a holistic package, which you would need the Government to take on board in toto, or do you think that there will be options and you can do a pick ’n’ mix with it?

Lord Macdonald: I would have thought, given the way the process works and the way it is working with intensive discussion in Government, that the final conclusion would be accepted by the Government and would lead to implementation.

Q26 Nicola Blackwood: In total?

Lord Macdonald: One can never say in total, but I would be surprised if much of this stuff was put on a shelf. These are all critical matters of public importance on which the Government are expecting to see action. Whatever the recommendations of the review are, I would expect the majority of them to be accepted by the Government and acted upon.

Q27 Nicola Blackwood: Do you think that those recommendations are interdependent?

Lord Macdonald: No. I don’t think they all are interdependent.

Q28 Bridget Phillipson: I want to return to control orders. What consideration will you be giving to looking at a modified system of constraints on terrorism suspects to replace control orders, as has been suggested by Lord Carlile?

Lord Macdonald: There are many options which are being considered. One is to keep control orders as they are, one is to abolish them entirely and the other is to replace them with some other scheme which is different from control orders but provides some form of reassurance.

Q29 Bridget Phillipson: You think there is scope to do that-to look at a modified system?

Lord Macdonald: I think there is scope to do all of those things. You can make arguments for each of those options. Certainly, a lot of work has been done on possible schemes that might replace the control order scheme.

Q30 Alun Michael: Can I just go back to the nature of the role? You didn’t like the word "supervision", I think, earlier.

Lord Macdonald: Yes.

Q31 Alun Michael: Can you just say a little more about it? Do you see everything that comes into the review team?

Lord Macdonald: Yes.

Q32 Alun Michael: Are you able to take part or observe the methodology that they are using in analysing?

Lord Macdonald: Yes.

Q33 Alun Michael: Are you able to look at what additional evidence is needed and so on?

Lord Macdonald: Yes. I have sight of everything. I have sight of the most classified material relating to control orders and controlees. I have seen everything that exists to justify the present regime. I have open access to officials at the most senior level and I have had very frank discussions with them. I don’t believe anything has gone to Ministers that I haven’t seen. I have had an opportunity to comment on everything that has gone to Ministers and changes have been incorporated as a result of our discussions in briefings that have gone to Ministers; and I have had free and open access to the Ministers themselves to talk about the evolving thinking of the review. I wouldn’t have undertaken this role unless I was satisfied that all of those would be the case. I have never had any sense at all that there has been any attempt to lock me out of any aspect of this review or to make it difficult for me to access any material that I want to access. I found the Office for Security and Counter-Terrorism to be entirely co-operative, as I would have expected.

Q34 Dr Huppert: On the issue of the Office for Security and Counter-Terrorism, isn’t it somewhat unusual to have a review like this being conducted by the people who set up the existing system? Would it not have been a more independent process if, say, you had been conducting the review and they had provided you with all the evidence? There is a concern that people have a natural tendency to support what they have previously done.

Lord Macdonald: There are various models that could have been employed. The Home Secretary chose to employ this model, and I assume it is because of the sort of fears that you have hinted at that she asked me to provide independent oversight-so that nobody would be able to say at the end of this review that this is some sort of Home Office stitch-up. As I have already indicated, my report will be published on the same day that the review is published.

Q35 Dr Huppert: And it is entirely up to you what you put in that report?

Lord Macdonald: Of course.

Q36 Steve McCabe: I want to ask one more question about control orders. If we allow for the fact that you are taking a neutral view on them now-I was going to say a blank sheet of paper, but I had better not-do you think your review is in any way compromised by the fact that the Government have now availed themselves of control orders, having previously indicated that they were against them, and that is why they wanted a review?

Lord Macdonald: I don’t think so. The Government are bound to avail themselves of any powers that they possess, and it is not particularly surprising if the Government choose to do that. I don’t think that compromises their asking the question as to whether these powers should exist in the first place. If the review comes to the conclusion that they shouldn’t, I would expect the Government to accept that conclusion.

Q37 Chair: You have never liked the words "War on terrorism", have you?

Lord Macdonald: No, I haven’t.

Q38 Chair: I’m sorry, I don’t know the exact date of this quote, but you said this: "The fight against terrorism on the streets of Britain is not a war. It is the prevention of crime, the enforcement of our laws, and the winning of justice for those damaged by their infringement." Do you still hold to those views-that it is not a war but it is a criminal act?

Lord Macdonald: Yes. The response to terrorism is obviously multi-layered. Sometimes it is a military response abroad. Sometimes it is an intelligence-inspired response. Sometimes it is a security service response. But the point I was making in that speech and the context was that when crimes are committed on our streets, they should be dealt with as crimes and put through the criminal justice system. I might add that we have done that with tremendous success in this country. We’ve had more success than any other country in prosecuting terrorism through our courts, with a 90% conviction rate, more experience than any other country, and that’s the way we should do it. I said many times, when I was DPP, that London is not a battlefield.

Q39 Chair: In dealing with other areas that are not touched by your review, such as engagement with communities, do you think that we should begin to use that kind of language-that it is not some great battle between either religions or ideas, but it is about criminality?

Lord Macdonald: Yes. The coalition Government, as were the previous Labour Government, are completely committed to this idea of engagement between communities. Indeed, the last Government did move very firmly away from the language of "war on terror" and so on and so forth. Ministers specifically disavowed that sort of language. I know it is not language that has ever been used or is ever likely to be used by the coalition Government. It is not helpful. It is destructive and it is self-defeating.

Chair: Thank you very much. Next week we will be hearing from Lord Carlile and Charles Farr. We are most grateful. We look forward to having you back before the Committee once your report is concluded. Thank you, Lord Macdonald.