Examination of Witnesses (Questions 31-39)
16 JUNE 2004
RT HON
LORD NEWTON
OF BRAINTREE
AND RT
HON BARONESS
HAYMAN
Q31 Chairman: Lord Newton and Baroness
Hayman, thank you very much for coming to appear before us today.
It is very useful for us to be able to talk to you about your
report in order to help us in the preparation of our report into
the review of counter-terrorism powers which the Home Secretary
has announced, and I know you have been able to hear some of what
Lord Carlile has said to us previously. If we can look firstly
at some of the process changes which you suggested might overcome
some of the difficulties which we have faced up until now in prosecuting
suspected terrorists, could you say what you think are the main
obstacles in relaxing the current absolute ban on the use of intercept
material?
Lord Newton of Braintree: Well,
the obstacle is no doubt in the minds of people who oppose it
and I am not in a position to validate Lord Carlile's speculation,
but we got some fairly clear indications that there was a division
of opinion even amongst the intelligence agencies, though I am
not going to attempt to attribute particular views to particular
ones. Clearly the principal worry was compromising methods and
sources and, I suppose at the extreme in rather more James Bond
terms, revealing the identity of an agent and the possible effects
for them, but then what puzzles me in respect of this issue is
that nobody is suggesting that you should have to use intercept
evidence in court if you form the judgment that you do not wish
to do so and that there are dangers which prevent you from doing
so. Therefore, I must admit, I find it virtually impossible to
understand, as evidently Alex Carlile does as well, why there
should be a complete ban on the use of evidence of this kind.
I do not know whether Helene wants to add to that.
Baroness Hayman: I agree absolutely
and I think that the evidence which we did get from elsewhere
in the world was that it was possible to devise systems and again
it is back to Lord Carlile's view about being a little bit more
imaginative about the process in which you can provide some protection
for the source and not compromise the integrity of the intelligence
services, but at the same time bring forward material which would
help to mount a prosecution rather than have to have a detention.
Q32 Chairman: So you would agree then
that what Lord Carlile described as a sort of protective anxiety
in this country is exaggerated in the use of this material?
Lord Newton of Braintree: Well,
it may well be that the protective anxiety is not exaggerated
amongst those who feel this protective anxiety. I think it is
the case, quite apart from Alex Carlile who of course was not
a member of our Committee, that there was not a single member
of those of us who were on the Committee who was not of the view
that it was sensible to relax this ban because, as I say, it does
not follow from that that you are forced to disclose material
which might have damaging effects for your sources or indeed your
methods.
Q33 Mr Woodward: One of the alternatives
to detention which you looked at in your report touched on the
question of using intense surveillance, and obviously you had
a number of discussions with authorities about this in the preparation
of your report. Could you indicate whether or not you thought
that the reason perhaps that detention was being used rather than
alternative methods, such as intense surveillance, is on account
of resources?
Lord Newton of Braintree: I think
I am going to have to weigh my words almost as carefully as Alex
Carlile wisely did on one or two other subjects on this. I do
not think we have stated a conclusion of that kind, as I remember,
but one of the things which I should have said at the beginning,
Chairman, is that all of this from my point of view is six months
ago and we actually had, unlike Alex Carlile, no continuing role,
so to some extent I am stretching my memory of what was quite
a long report, although obviously I have refreshed it to some
extent. I do not think we stated any conclusion on this other
than the view that if resources were a constraint, then that resource
question ought to be addressed. I think it would be fair to say
that although the Committee did not attempt, in my recollection,
to reach a unanimous conclusion about how far resources might
be a problem, there were a number of members of the Committee
who clearly did feel that insufficient resource was being devoted
to surveillance. I remember one visit, I think it was to New Scotland
Yard, where we saw some of the work which was going on, and obviously
I am not going to refer to that in any detail, but I do recall
that after that visit some surprise was expressed by one who was
on it in particular, that he felt really that more could be done
than appeared to be being done, and this is not a criticism of
those doing it, just a question of whether there are enough of
them.
Q34 Mr Woodward: And some people, looking
at the idea of intense surveillance, might also bring up a civil
liberties issue about intrusion into privacy?
Lord Newton of Braintree: Yes.
Q35 Mr Woodward: Was that something which
you were mindful of from the evidence which you took and something
which would worry you if, for example, we moved away from detention
to using intense surveillance as a method?
Lord Newton of Braintree: We are
back into that area which was described as a grey area in the
exchanges which I heard with Lord Judd just now and with which
this whole subject is littered. We are in an area where essentially
we are living in a world which none of us would like to live in
and probably, certainly when I was young, did not expect to be
living in. We have moved away, therefore, necessarily from some
of the absolutes or some of the propositions which we used to
think were absolutes and I do not actually believe, if I can echo
something I heard Lord Campbell say as well, that one can treat
this subject now as one where there are blacks and whites. There
are clearly objections of one kind or another by traditional standards,
and, if you did not know, I had a Quaker education, so I come
from quite a liberal, with a small "l", background,
there are clearly quite significant objections to almost any of
the things which we have suggested, for example. The question
is whether those objections are less than the objections to some
of the things which we are currently doing. I would certainly
expect that there should be proper safeguards against the abuse
of surveillance powers and without that I think one can see some
very considerable danger. You can argue till the cows come home
about just what the nature of those safeguards should be, but
the fundamental issue to me is whether this is better or worse
than what we have got or better or worse than what we have got
at least as one way of reducing the need to keeping people in
detention indefinitely on the basis that we do at the moment.
Q36 Mr Woodward: Therefore, on the basis
that one has to make decisions, do you feel that, on the basis
of the evidence which you took, actually as an alternative to
detention we could be using intense surveillance and, therefore,
avoid detaining people in some of those cases?
Lord Newton of Braintree: I certainly
think that it is possible and in a way what we were suggesting
was a menu of possibilities which ought to be explored, but at
the very least could reduce the need for what we have and it does
seem to me that increased intensive surveillance is one of the
things which could be an ingredient in an overall approach which
I think would be better than what we have at the moment.
Q37 Mr Woodward: Somebody has rather
sensibly suggested a supplementary which I should ask in this
area, which is whether or not, again from the evidence which you
took, you got an impression that intense surveillance might be
carried out in the future with the knowledge of the person who
is the subject of that surveillance?
Lord Newton of Braintree: I can
see that it could well be part of the kind of civil restriction
order, and this is a bit off the cuff, I have to say, because
I do not think we considered specifically that angle, but I can
see that it might be part of the kind of restriction order which
we suggested was also a possible ingredient or element in the
menu of alternatives in some cases.
Baroness Hayman: I think there
are two benefits of surveillance. One can be that the overt surveillance
which takes place with the knowledge of the subject can be beneficial
in terms of disruption because they then become less useful in
the whole network and that can by itself be a means of disruption
and prevention. The other benefit of surveillance is when it is
not known to the subject and when it can lead to evidence which
allows you to prosecute or to form links and understand what is
going on and again to prevent action. Further to what Lord Newton
said, I think that it is a matter of proportionality here and
I think we felt that in some cases, and I do not think this is
a one-size-fits-all issue, a more proportionate response in terms
of restriction of civil liberties and intrusion into civil liberties
to the threat which was posed would be intense surveillance, recognising
that it was an intrusion. Equally, I think the security services
would say in some cases that it was not sufficiently proportionate
because surveillance is not as 100% a guarantee against malfeasants
as detention, so if the threat is greater, a higher level of intrusion,
ultimate intrusion in terms of detention, would be warranted.
On the issue of resources, I think I recall that never in evidence
did anyone say, "We do not have sufficient resources to undertake
intensive surveillance", but the preface to any answer on
surveillance is, "Well, of course surveillance is very expensive
and resource-intensive", and that may be a difficulty not
simply of finance, but of manpower.
Lord Newton of Braintree: In one
sense I should perhaps just add, if I may, one further word because
I have just been checking some of the paragraphs in our report
and, implicitly in what we said about restrictions on liberty,
we did imply a degree of surveillance, whether you regard it as
intensive or not, because we suggested that one possibility might
be requiring the restricted person only to use certain specific
phone, bank or Internet accounts which might be monitored, so
a degree of surveillance would be implicit in a restriction order
along anything like those lines, and indeed it is with tagging,
to take the simplest form.
Q38 Lord Campbell of Alloway: Lady Hayman
said something very interesting quite some time ago, and then
we come to this. The essence of this administration is proportionality.
You cannot use intelligence material. It does not really matter
whether it is intercept, where it was intercepted or whatever.
That is just a quality of the intelligence material. Was Lady
Hayman saying—I think she was—that then the judge
or SIAC create a narrative which does not identify any intelligence
that is dangerous but lets the accused know roughly what he has
to meet? Is that what happens? I do not know. I thought Lady Hayman
was getting near that.
Baroness Hayman: I think I was
getting near that in terms of what a future system might look
like in assembling a criminal case as an alternative. In my view
lots of the processes that are used by SIAC could be, with a little
imagination, put into not the review of an administrative decision
but a prosecution for either "acts preparatory to terrorism"
or one of the offences under the Terrorism Act, but I do think
one has to recognise that for a lot of these cases there is a
mosaic that fits together of information, intercept, reports,
hearsay, in other words no one piece of evidence that would be
accepted in the normal criminal case but that together can give
the grounds for concern that I think many people would find warranted.
Q39 Lord Campbell of Alloway: It is for
the court in this form of administration of justice to do what
it thinks is fair and for the accused to know what sort of evidence
he has got to meet within the limits of protecting the agency's
security, so this must be a matter of discretion for the judges,
must it not, or do they ask the intelligence people to provide
a report and then approve it?
Baroness Hayman: SIAC has its
open session where it is possible for the accused to hear what
is said and for their non-special advocate to argue the case.
The closed session deals with that information that cannot be
disclosed but is disclosed to the special advocate, but a sort
of barrier comes down so that that cannot be put again to the
detainee.
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