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UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 713-i HOUSE OF LORDS House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE JOINT COMMITTEE ON HUMAN RIGHTS
REVIEW OF COUNTER-TERRORISM POWERS
Wednesday 16 June 2004 RT HON LORD CARLILE OF BERRIEW QC RT HON LORD NEWTON OF BRAINTREE and RT HON BARONESS HAYMAN Evidence heard in Public Questions 1 - 68
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Joint Committee on Human Rights on Wednesday 16 June 2004 Members present: Jean Corston, in the Chair
Witness: Rt Hon Lord Carlile of Berriew QC, a Member of the House of Lords, examined. Q1 Chairman: Lord Carlile, thank you very much for appearing before us today. You will be aware that as part of the Home Office consultation on what measures should replace the Anti-Terrorism Crime and Security Act 2001 when it comes up to 2006, we have been looking at the issues which arise in relation to that and we are particularly keen to talk to you about your remit in reviewing the operation of the provisions in Part 4. I understand that you have concluded recently in your report that Part 4 is, and I quote I hope correctly, "both workable and working reasonably well". Is it right that you have seen the intelligence information in relation to each person certified and detained under Part 4 and are you confident that each of the individuals detained did indeed pose a real threat to the safety of the public and, therefore, should not be committed to be at liberty? Lord Carlile of Berriew: The answer to your first question is that I see exactly what the Home Secretary sees first before I make any other judgment. My job is to review the working of that Part of the Act and I have taken it upon myself that the starting point is to see exactly what the Home Secretary has. I then have the opportunity, if I want to, to look at intelligence material. I do not actually see the raw material, for example, the records of intercepts which might be obtained by GCHQ, and they would not make much sense to me if I did see them, but I see the summaries of such material. I have not been refused sight of anything which I have asked to see whether specifically or in general terms. If I were the Home Secretary, therefore, to take the first part of my role, I would have ordered the detention of each person who has been detained, and I think he was right to do that, on the basis of the information he was given. There is of course a further test of that information in front of SIAC. I hope that answers the question. If I can take it one stage further, having read the judgments of SIAC, then I would agree with those judgments, namely that in all cases, except the case of 'M' and the rather unusual case of 'G', the bail case, I think that detention was justified. The material which I saw certainly provided detailed information that the persons detained posed a threat to the security of the United Kingdom. I would commend to you the first generic judgment of SIAC in which these very complicated factual issues about the connections of the detainees with al-Qaeda and its agencies, if that is the right word, were set out in very great detail by Mr Justice Collins and Mr Justice Ouseley. Q2 Chairman: You referred just then to SIAC and obviously SIAC have allowed one of the substantive appeals. I wonder whether this has caused you to reassess the reliability of the intelligence material to which you have just referred in the light of the decision that 'M' should be released, and that indeed the material relied upon by the Secretary of State did not cross what they deemed to be the necessary threshold? Lord Carlile of Berriew: I think there are two parts to that answer too. The first is that in the criminal law, the quasi-criminal law, nothing is ever quite what you expect. I have yet to discover a criminal case, and I have done thousands of them, in which the prosecution evidence was quite as strong as it seemed and the defence evidence was quite as strong or weak as it seemed, according to the circumstances. The way in which evidence comes out does change the emphasis which the tribunal of fact gives to it and that is certainly true with SIAC. I have read, I think, all the closed material of the SIAC hearings, or certainly tried to, and it is very typical of court hearings in criminal cases in general. As to the case of 'M', I would, with great respect, question your premise. The rationale, as I understand it, behind the decision in 'M' was that 'M' was a person who posed a terrorist threat, but he was a member of a Libyan terrorist organisation. The Libyan terrorist organisation in question is not part of al-Qaeda, so SIAC found, and, as a result, it is outwith the derogation because the derogation has been carefully circumscribed to refer only to al-Qaeda connections. The result is that in answer to your question I would say that the end decision does not undermine my confidence in the quality of the intelligence material. It does confirm, however, that SIAC is a very rigorous and sophisticated legal tribunal which is able to make the fine distinctions which are necessary in extremely complex factual territory. Q3 Lord Lester of Herne Hill: Lord Carlile, obviously your remit is looking at the system as it is largely rather than some different way of approaching it. Given that the SIAC procedure is a compromise between a completely open and normal criminal trial and something not at all like that and given that it is quasi-criminal, as you have said, are there any procedural improvements which you would like to suggest which would bring the SIAC procedure closer to meeting basic criminal law standards without compromising its essential purpose? In other words, within the system are there ways which you could envisage of improving it in that way? Lord Carlile of Berriew: Within the system there are ways of improving it. For example, I would prefer to see the, if I can use the legal slang, 'wingmen', the two people who sit with the judge, who is the chairman, coming from a broader and more transparent range of people and my own view is that there is absolutely no reason why lay people should not sit on SIAC. I have not yet drafted, other than in my head, my response to the consultation paper; I have deliberately left it to as near the end of June as possible. In my head there is a pattern which involves a tribunal like SIAC, but which has very significant lay involvement, something between a jury system and SIAC. I do not myself believe in the Holy Grail of the jury system and I think you might share that view, Lord Lester ---- Q4 Lord Lester of Herne Hill: I do, yes. Lord Carlile of Berriew: ----- that the jury system is not sacrosanct in itself. There may be better ways of reaching a correct decision on issues of fact and I think that with a little bit of imagination and a little bit of conceptual thinking, there may be ways of either moving SIAC into that more transparent context or something to replace SIAC which is in that more transparent context. If I can give you an analogy, in the Caroline Dickinson case in France there have been jurors. I have witnessed cases in emerging countries, and Hungary is a very good example, where there are lay people who sit as jurors for a fairly extended period, one or two years, but they bring their ordinary citizens' views to the facts of a case. Q5 Lord Lester of Herne Hill: I suppose it enhances the appearance of independence and impartiality if you do not have people from the intelligence community as members or as automatic members. Lord Carlile of Berriew: It does, yes, and there are examples within the United Kingdom, in the Channel Islands, of jurats who sit as the tribunal of fact, according to the seriousness of the case, an inferior number or a superior number, and there is something between jurors and magistrates and I think there is room for that. I also think there are two other improvements which could readily be made. The procedure could be speeded up by the appointment of more special advocates. Perfectly understandably, the special advocates have come so far from the esoteric area in which, with great respect, you, Lord Lester, are an expert. They have been mostly highly respected judicial-review practitioners. That is no longer necessary; the issues of principle have largely been got out of the way now. What they need as special advocates are a large number of people of an appropriately secure kind who are used to the analysis of criminal evidence and there are hundreds of barristers and solicitors around who would fall within that broad context and if there were more special advocates, these briefs would be unreturnable and very difficult for someone to do more than one case at a time. It would be quicker and also of course things could be speeded up if there was more than one division of SIAC. Q6 Lord Lester of Herne Hill: There seems to be some difference of opinion between you and Newton about discovery rules. It may be simply a question of nuance, but they recommend that there should be a more structured series of disclosure rules about the discovery process in order to strike a better balance between the needs of national security and the rights of the accused to a fair trial. Now, it may just be a difference of emphasis, but I think you have suggested that there should be a published protocol, a rather different approach, but is that just a difference of emphasis? Lord Carlile of Berriew: I am absolutely certain that that is merely a difference of nuance. I enquired both of SIAC, of the judges who chair SIAC and of the people in the Home Office who deal with the cases as to how they deal with disclosure. The way they deal with disclosure is in fact according to the fundamental principle of criminal disclosure, which is that you must disclose anything which may either undermine the prosecution case materially or assist the defence case materially, subject to PII on individual issues, including potential redaction of individual documents. That is in fact what occurs. Now, I do not think that the Newton recommendation is deliverable because it involves open hearings, as I understand it. My view is that the publication of a protocol which would be policed by SIAC in its directions hearings would be sufficient unto the event and would ensure that the right disciplines are followed. The analogy would be up to now the Attorney General's guidelines on disclosure and now the new rules introduced by the Criminal Justice Act 2003 which are not yet in force, but will be in force in most criminal cases within a very short time, one expects. Q7 Lord Campbell of Alloway: You referred to this procedure which of course is in a context where the court has access to very sensitive security information and only in that context. What is your attitude to a system rather akin to the Continental system where the judge has all the material, there is a preliminary investigation before the judge and he makes a decision? It is called the juge d'instruction system in France, but it is used in other countries too. What is your approach to that? Lord Carlile of Berriew: This is the issue on which I have more of a difference with the Newton Committee than any other. Monsieur de Brugière, the well-known terrorist juge d'instruction in France, is extremely persuasive and argues a good case for a juge d'instruction system in relation to terrorism matters. I do not think it bears detailed examination first of all. If you look at recent articles in French domestic newspapers about ordinary serious criminal cases, the newspapers are baying in their leaders over there for the Anglo-Saxon procedure because it is more efficient, it is quicker and cross-examination is more rigorous, so there is undoubtedly a difference of opinion based on "the grass is greener on the other side of the Channel", I suppose, about whether a juge d'instruction system, inquisitorial system or an adversarial system works well. I certainly think that the argument for the juge d'instruction is unproven, but delays, for example, in bringing people to a hearing, a SIAC-type hearing, under the juge d'instruction system are at least as extreme as anything which has been experienced in SIAC and in most cases far, far longer. Lord Lester of Herne Hill: I do not think, with respect, that your all-or-nothing approach quite meets the Newton argument. The argument is not to go over to a fully French juge d'instruction system. The argument, I think, goes like this, but we will hear about this later: that given that SIAC is a compromise, it does not secure the normal fair trial, would it not be sensible to have a vetted judge who acts, if you like, like the DPP, who is completely independent, looks at all the evidence at the outset and provides some greater safeguard of fairness than simply relying upon a special advocate who cannot talk to the accused at all? It is another kind of quality safeguard which does not undercut the idea of a quasi-adversarial process later, so it is a compromise. Your answer suggests that you think it is either the French system or what we now have and I doubt whether that is what Newton meant. Lord Campbell of Alloway: Anthony has put it how I should have put it really. You went 100 per cent for the French system. Lord Lester of Herne Hill: Against. Q8 Lord Campbell of Alloway: It is an adaptation of that system which we would adapt for our own purposes and as to the cross-examination, we would develop a procedure where the Bar would cross-examine in exactly the same way and if they wished to intervene, the judge would allow them to intervene. You see, in France the judge will not allow at times the advocates to intervene, but that would not operate under our system. I think what I am asking you is whether you have got an open mind to this particular type of procedure adapted to our own fashion or whether it is closed? Lord Carlile of Berriew: The first thing I would say is that I had a great deal of contact with the Newton Committee while it was preparing its report and indeed gave evidence to the Newton Committee. My understanding of the report is not quite as Lord Lester fears. The second thing I would say is that yes, of course I have got an open mind. I would happily welcome anything which would make for a more effective procedure and a fairer result than can be achieved at the moment and from that viewpoint, you are pushing at an open door. However, I am dubious, seriously dubious that with the kind of case management which is being operated by very experienced administrative judges in SIAC you are going to get much of an improvement if you place somebody else into the equation. I think too you have to look at the performance of the special advocates and it has been patchy, to be fair. In one case, for example, the special advocate, having heard that the detainee's solicitor and instructed silk were not going to address SIAC, decided it would be inappropriate for himself or his junior, a special advocate, to address SIAC, and Mr Justice Collins plainly was extremely frustrated by what occurred. There was an exchange of correspondence with the Solicitor General who formally instructs the special advocates and that was the end of that. In another case where the solicitor for the detainee and the detainee's silk reached exactly the same decision, the case of 'M', the special advocate, and I emphasise that I have read all the closed material, took a different view and put up an absolutely magnificent performance on behalf of 'M' and won the case. As it happens, this particular special advocate was not the most famous judicial review lawyer in the country. What it demonstrated to me was that if the system which we have created, albeit subject to whatever fine-tuning can be created which would be very welcome, can be made to work, it would be foolish to do what I understood Newton to be recommending which is to chuck out this system and try something completely different which might be founded on an inquisitorial approach. It ain't broke. I think it may need some improvement and sophistication in the way that, just like a car, one can improve one's sense of direction with a global-positioning system and maybe SIAC could do with a few adjustments of that kind, but the basic system, in my view, has been shown to work well, and I regretted the fact that the Home Secretary seemed to imply in one of his recent comments that SIAC was not working well. I think he should have said that the cases of 'M' and 'G' are examples of the system of law which we have created working extremely well and not accepting what either Home Secretary has said in every case. Q9 Mr Stinchcombe: I wonder if I could ask you about two possible adjustments which might be made to the SIAC system. Firstly, you have suggested that there should be some more special advocates. Is it necessary that they all be appointed by the Attorney General? Lord Carlile of Berriew: Somebody has got to appoint them and I think this is a jolly difficult question to answer and a very well taken one, if I may say. The current system is, as I understand it, that the instructions to special advocates are not given by the Attorney General in individual cases, but they are given by the Solicitor General with a sort of Chinese wall erected between them. Now, I am merely repeating what I have been told and it is a matter for the Committee to judge whether that is a satisfactory system. Q10 Mr Stinchcombe: But what is your view? Why should the Attorney General, who represents one part of these proceedings, appoint the special advocate who represents another? Lord Carlile of Berriew: Well, I think it is part of our political tradition, is it not? The Home Secretary or the Crown appoints the independent Inspector of Prisons, the Home Secretary appointed me, and there are all kinds of appointments which somebody has to make. It may be that a system could be devised in which some independent body appointed the special advocate, but here we come to the arguments which have infected discussions on the Judicial Appointments Commission, that somebody has got to appoint the commissioners. Who appoints the appointers who appoint the appointees? That is always going to be a question. I think at the end of the day there have been very few complaints from the service-users, if we can call them that, about the appointment system and very few justifiable complaints about the performance of those special advocates who have been able to engage with the process and do well. I have recommended repeatedly, and I hope something is going to be done about this, that just as the Judicial Studies Board trains judges at all levels, nobody sits for one second as a judge of any kind without going through a JSB training course, there ought to be a proper system of training created for special advocates and at the moment, as I understand it, there is not. Q11 Mr Stinchcombe: I wonder if I could just push you on another possible adjustment. Bearing in mind that these special advocates are all appointed by the Attorney General, is it necessary that we prohibit all contact between the special advocate and the detainee once that special advocate has seen the closed material? Lord Carlile of Berriew: No, I think that special advocates should be given the discretion, subject to approval, I suppose, to see the detainees or at least to correspond and communicate with the detainees and their lawyers so that they can be better informed as to the way in which to deal with SIAC. I suspect, however, that what the special advocates would say would be of greater assistance to the private lawyers for the detainees than what the detainees would say to the special advocates. If I can give you a simple example, a detainee may assert that he had absolutely no contact with a particular group of people and, completely unknown to the detainee and heard in closed session, there may be evidence to show that that is completely untrue. There may be intercepts which show he had contact with those people, but people sometimes tell lies for reasons which are not quite as bad as they seem. Here I refer to the classic Lucas directions given in criminal cases where people may tell lies to hide something embarrassing which has happened in their lives and so on and I think that more contact with the special advocates would help to deal with issues of that kind. Having said that, I do understand the sensitivity of the security services. Some, not all, but some of the detainees may well be extremely sophisticated terrorists, very well trained and well versed in counter-terrorism techniques and it may be possible for them to glean information which they would not otherwise obtain were they to have close contact with the special advocates who are mere lawyers, not trained in terrorist and counter-terrorist techniques. I do understand that worry; I think it is more than illusory. The recipe I would offer, therefore, is that if a special advocate feels that there would be an advantage in contact with the detainee or his lawyers, he should apply to SIAC for leave, for permission, to make that contact and explain why and SIAC should determine whether that contact should occur. Q12 Lord Lester of Herne Hill: Did you take evidence from the special advocates about what they think of the system? Lord Carlile of Berriew: Yes, I have spoken to special advocates and, I hope, a reasonable cross-section of them. I did not take formal evidence, but I meet with people and necessarily some of it is anecdotal, but I am talking to people who do the same for a living as myself, so I understand a little bit of how they operate. I think the special advocates feel first of all that they could have more help in the preparation of cases. I have seen the boxes of papers given to special advocates and they are daunting and sometimes unstructured. That has been addressed up to a point already by the appointment of MI5 employees who are there to assist the special advocates in assembling the case, but there may be more which can be done on that. I think that the special advocates would agree that there are circumstances in which the inference behind Mr Stinchcombe's question would be shown to be justified, that they should have some contact, and I think that they would all support the view that they should be given some training and be given a collegiate atmosphere in which to work. Being a member of your Chambers, Lord Lester, is insufficiently collegiate. Q13 Lord Judd: Lord Carlile, the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984 came into force in 1987 and the UK ratified it without any reservations on 8 December 1998. I am sure it is not really necessary, but perhaps I may for the record just remind you that it states absolutely uncompromisingly that, "Each State party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made". How do you reconcile that with the current procedure whereby SIAC is permitted to rely on evidence which it knows has been, or may have been, obtained by torture elsewhere, not in the United Kingdom, in support of its factual findings? Lord Carlile of Berriew: I think the first thing one has to say in response to that extremely important question is that there may be an issue about what is evidence. There may be a difference between evidence and information. Let me give you a simple example. Let us suppose that an interrogation takes place in some unpleasant place in which a person is tortured and, as a result of that, provides information that in Birmingham there is an al-Qaeda cell which is preparing a bomb which will go off at Villa Park on a Saturday afternoon, killing thousands of people. Acting on that information which is passed to British intelligence, the police go to a house in Birmingham and they find a bomb or bomb-making equipment which could be used to carry out that shocking plot and, acting on that information, they arrest a large number of people and bring a case to the court. Now, one is left with obvious questions arising from that set of circumstances. How far can one adopt the ordinary British evidential principle, and the leading case is Sang, in which one does not have a total exclusionary rule? We have a partial exclusionary rule which involves judicial discretion in the weighing of the evidence. Now, I think that kind of example shows how difficult the issues are. The direct answer to Lord Judd's question of course is that we should adhere to our Treaty obligations and I would be the first to say that I feel very uncomfortable about evidence being used if it has been obtained by torture, but is it reasonable to say that information which has been obtained which leads to evidence should never be used? Now, my understanding, having read the SIAC cases, is that nothing obtained by torture has been used as evidence. SIAC of course acts on information as well as what would be described in a criminal court or a civil court as evidence. Q14 Lord Judd: But in support of your general contention about how the scheme is working, would you be prepared to say categorically that it has not been used as evidence? I do not want to be unfair, but you do choose your words, it seems to me, rather carefully. You say that your understanding is that. Lord Carlile of Berriew: I have read an awful lot of material, thousands and thousands of pages, and I could not put my hand on my heart and say that nowhere has information slipped into the area of evidence and I could not, therefore, say for certain that no evidence obtained as a result of torture has been used. However, I should say that Mr Justice Collins dealt with this in the first major judgment of SIAC. Mr Emerson QC took the point. It was argued extensively and judgment was given on it and my understanding of the situation, and I am sorry, I cannot put it higher than that because it would not be absolutely honest of me to do so, is that such evidence has not been relied upon as evidence against any of the detainees. Q15 Lord Judd: I am bound to say that I think you are being very direct with the Committee and personally I appreciate that about a dilemma, but it does suggest to me that there must be some qualification on your final conclusions about how the scheme is working because it is a very important area and you are saying that there could be a grey area. Lord Carlile of Berriew: I think this is all terribly difficult and this is why I find what I do so interesting. On the one hand, the duty of the Government is to protect the public of this country and if 1,000 people were killed, in my example, on a Saturday afternoon at Villa Park and the Government had information from the intelligence service of some faraway land that this might happen and had not acted upon it, you can imagine what would occur. Q16 Lord Judd: But that is information. You yourself made the point that that is information. Lord Carlile of Berriew: Yes, it is information. Q17 Lord Judd: The grey area to which I am referring is your unwillingness, which I think is a very honest position, to be categorical about the dividing line between information and evidence. Lord Carlile of Berriew: Well, I think that is a matter which can be determined in an individual case in court and that is why I think that the partial exclusionary rule, which we have in the criminal courts as a result of the decision in DPP v Sang mainly, is actually quite practical. I think you have to look at the circumstances. The general principle must be that you never act on evidence obtained from torture, the general principle, but there may be circumstances in which one would say, "Well, just a moment. There was a plot to kill 1,000 people at Villa Park". Q18 Lord Campbell of Alloway: What Lord Judd is saying, that there is a grey area, of course is right, but what he would like to have is a black-and-white area and that does not exist. Lord Carlile of Berriew: No. Q19 Lord Campbell of Alloway: It is because of that that you have this partial exclusionary judicial rule and you will never get better. The administration law is not an exact and perfect science, so you will never get much better than where we have got to, or could we? Lord Carlile of Berriew: Yes, I broadly agree. I have appeared in cases, nothing to do with terrorism, where I have felt the rank sense of injustice as an advocate because there was not an exclusionary rule and in other cases where I have felt the rank sense of justice because there was not an exclusionary rule. Now, the fact that one is left in that tricky moral dilemma probably shows that the fulcrum is in approximately the right place and we are back to the scales of justice, are we not, really? Q20 Lord Judd: I am very happy that my good friend and colleague is suggesting that I want to hear things in black and white, but I hope he will accept that I was not born yesterday and that I too recognise that there are aspects of life where that is just not possible, but what I am suggesting is that in such a crucial area, in keeping everyone informed, and I put this in all humility, it might be helpful if you could indicate in your reports that there are areas in which judgments have to be made in the sort of way you have very honestly described them to the Committee. That does not seem to me to come across in the positions you have reported, so I wonder, in view of our categorical commitments under the Convention, whether that would not be helpful. Lord Carlile of Berriew: Well, I think that is a very good point, I take it on board and I am grateful for it, yes. Q21 Mr Stinchcombe: In the time available I wonder if I might just seek your views on two further recommendations of the Newton Report and one of your own recommendations. Firstly, should we treat terrorism as an aggravating factor when sentencing? Lord Carlile of Berriew: I think it is an extremely interesting suggestion, but I think it is a difficult one to construct into substantive law. We have racial aggravation as an aggravating factor, but in racial aggravation cases the instant offence is the main factor, say, 75/80 per cent, and the racial aggravation is the subsidiary factor which may add to the sentence, say, 20 per cent in ballpark figures. If you are going to have terrorism as an aggravating factor, a lot of people who are involved in terrorism commit, for example, small credit card offences, but repeatedly, so you may be left with the proportionality that 80 per cent is the terrorism and 20 per cent is the instant offence. I find it difficult to deal with that because, in my view, it places too much power in the hands of the judge and not enough power in the legislation, and I have some reservation as to whether such law could be drafted and administered in a way in which one has total confidence, but I am certainly an open door and I would be very happy to look at it if anybody can produce a draft. It is a good suggestion, but I do not see a draft. Q22 Mr Stinchcombe: Should we ban the use of intercept evidence in court? Lord Carlile of Berriew: No, I think it is a nonsense. I think everybody now agrees, apart from possibly GCHQ, though I do not know, you will have to ask them, but there is a general view that GCHQ does not agree, and I am not saying they have told me, but I am simply saying you should ask them, but everybody else seems to agree, the police and MI5, that intercept evidence should be used in courts. It is used in courts, I believe, all over the world, apart from ----- Q23 Lord Lester of Herne Hill: Ireland. Lord Carlile of Berriew: ----- Ireland, yes. Q24 Mr Stinchcombe: Finally, in your own report, you have suggested a broadly drawn offence of acts preparatory to terrorism and suggested that that might remove some of the need for executive detention. How would that operate if the evidence which would be adduced to prove the offence is evidence which cannot be adduced in open court? Lord Carlile of Berriew: It would totally remove the need for administrative detention and it would totally remove the need for the derogation. It would create a new offence of corporate acts preparatory to terrorism and I think it might have to be at two levels. It might have to be an aggravated offence so that you can clearly distinguish between the partner who does the cooking for a group of terrorists and people who are preparing to buy the items which are needed to make bombs, for example. I do not think it would solve the problem of having jury trials; I still think you would need some kind of tribunal and we come back to where I started. I think if one thinks about it conceptually, it may be possible to derive a tribunal which is more transparent and which involves a lay element, but is not a conventional jury trial. I think we are very unimaginative about such things. I think we could achieve it with an offence of the kind I have described in very broad outline with such a tribunal. Q25 Lord Campbell of Alloway: Could I enter another grey area as to what is information and what is evidence and it relates of course, and you referred to it, the intercept evidence. Surely in this area the court has to have that information for a start? Lord Carlile of Berriew: Yes. Q26 Lord Campbell of Alloway: Secondly, it has to use it, so it does not matter what you call it in this area of law. In other areas of law, of course it matters, but on the proportionality test with the desperate results which can happen from the acts that these people do, is it right, do you agree, that SIAC should not only have the intercept information, but should use it in the sense that it is evidence? Lord Carlile of Berriew: Well, if it is relevant and it is served, yes, then it should be used as evidence ----- Q27 Lord Campbell of Alloway: Quite. Lord Carlile of Berriew: ---- in an appropriate and proportional way. I think my answer is that it is evidence just like a photograph is evidence. It is a matter of admissibility first and weight second. Q28 Lord Campbell of Alloway: Where do we stand with the different regimes in America and here on the use of intercept information? Lord Carlile of Berriew: I do not know I am afraid. Q29 Lord Campbell of Alloway: Because they operate, I understand, treating all intercept material as evidence not only in terrorist trials, but in other trials. Do you know about that? Lord Carlile of Berriew: I know that it can be used in other trials and when I said to Americans when I was there last year that we are not allowed to use it in any circumstances or even ask questions as to whether it exists, they looked rather surprised, but not half as surprised as I looked when they told me of some of the things they do. Q30 Chairman: Lord Carlile, can I thank you very much for appearing before us today; it has been very useful. I would just like to say that if you can think of any ways in which you would like to elaborate on the issues which we have discussed today or anything which we did not ask you which you thought we should have asked you, we would be very pleased to hear from you in writing. Lord Carlile of Berriew: Thank you very much. Witnesses: Rt Hon Lord Newton of Braintree, a Member of the House of Lords, and Rt Hon Baroness Hayman, a Member of the House of Lords, examined. 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 which 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 Alec Carlile does as well, why there should be a complete ban on the use of evidence of this kind. I do not know whether Elaine 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 Alec 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 Alec Carlile wisely was 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 Alec 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 in 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 til 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 detaining 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 as100 per cent 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. Q40 Lord Campbell of Alloway: There is no way that you can remove that barrier without exposing your security? This is what it comes to. Baroness Hayman: That comes down I think to whether you can look at a version of the PII system in a way in which --- this is again where we talk in the report about the possibility of an investigating judge looking at a case and perhaps summarising the information that has come from a variety of sources and providing a general outline of that without being specific about particular instances which might well reveal to the suspect that someone else was being surveyed as well and might be of benefit to terrorists or might be of danger to those who are working in the security services. Q41 Lord Lester of Herne Hill: In paragraphs 224-227 of your report you suggested among your various alternative approaches an investigative approach in this specialised context. As I understand it the Home Office discussion paper that came out in February, although it is not wholly clear, was rejecting not what you were suggesting but something different, namely, a wholesale use of a French juge d'instruction, and in the second half of their paper they go a bundle into what the French system means in practice. Lord Carlile, in the evidence we have just heard, seemed also to be striking a totally Anglo-Saxon attitude, if I can put it like that in his absence. Lord Newton of Braintree: What a dreadful accusation! Q42 Lord Lester of Herne Hill: Even though he is a Welshman! As I read these paragraphs (but this is what I would be grateful to know about) you are not saying, are you, "Let's just go straight over to the French system"? What you are saying instead is something much more subtle, which is, build into our system a security cleared judge as the investigator or the Scottish procurator fiscal approach as an investigator and prosecutor in order to deal with the sensitivities that Lord Campbell and you have just been discussing. Am I right about that, that you are not advocating here that we simply all become French, but what you are saying as I understand it is that if you are going to do something like this then you can have something more like the normal criminal trial? Lord Newton of Braintree: You have summed it up better than I probably would have done if you had not led me to some extent. I listened to your exchanges with Lord Carlile on this and, high as is my regard for him, I thought he was painting our report as rather more black and white than it actually was and that you have the balance absolutely right. We did refer of course to the Scottish system as well as the French and we specifically said in paragraph 226 that we not envisage seeking to replicate another system in its entirety but to use the underlying principles to devise a system that works in the context of the British legal system. I think that is an accurate reflection of what we thought and ties in with the very accurate summary of what we thought that you have provided in your question. Q43 Lord Lester of Herne Hill: Do you have any preference as between a modification of the French approach or the Scottish approach, ie, the special investigating judge idea at the outset, or a more active investigative prosecutorial role by the DPP using a more Scottish approach, or do you regard those as simply two different means where there is a balance of arguments and you are not really competent to choose one rather than the other? Lord Newton of Braintree: As a matter of instinct I probably prefer the one that does not rely on somebody seen as the prosecutor but that is not a particularly tutored view. It will be clear to all by now (if you did not know it) that I am not actually a lawyer and the other thing that I should have said earlier on is - and Lord Carlile referred to the fact that there was not a draft either in this respect or in some other; I forget which - that we specifically took the view that we were not equipped or staffed or serviced to work out every last dot and comma of alternatives, and indeed I think that was accepted by the Home Secretary at some stage. What we saw ourselves as doing was suggesting possibilities that were worthy of further study and exploration by others better resourced to work them up in detail. Q44 Lord Lester of Herne Hill: And is your reading of the discussion paper like mine, which is that the Home Secretary has not necessarily closed the door? He has said that the government is going to be open-minded. He said that Part 4 has got to remain. He was rejecting a wholly French model but as I read the discussion paper carefully the evidence we are now taking may be of value because the government has not a closed mind? Lord Newton of Braintree: I would very much hope so because we were naturally - I will choose a muted word because I prefer muted words - somewhat disappointed by the initial reaction but at the same time slightly encouraged by other parts of the discussion paper that was published that did suggest more of a genuine willingness to look for new ways forward. I would very much hope, because I have a lot of respect for this committee and the work you have already done in this area and your expertise on human rights matters which is certainly greater than that of the committee I chaired, that this committee can make a useful input to that because I think your views should carry weight. Q45 Chairman: Lord Newton, you did recommend in your report that terrorism should be treated as an aggravating factor when sentencing. You will no doubt have just heard Lord Carlile say that he was not sure that this was necessarily a good idea because of the disproportionate effect it could have on a sentence, but if it were to be so treated do you envisage that the standard of proof for establishing the link with terrorism should be the criminal standard of "beyond reasonable doubt"? Lord Newton of Braintree: My recollection is that we specifically referred in the report - and yes, we did; happily my eye has fallen straight on the sub-paragraph which is part of paragraph 221 - to the possibility (and I emphasise what I said just now that we did not see ourselves as working up a scheme in detail) of this requiring only a lower standard of proof such as balance of "probabilities". I certainly would not want to rule that out, though clearly that too would raise issues as to what appropriate safeguards should be introduced in this respect. Baroness Hayman: I think it is a really difficult issue, and Lord Carlile referred to this, that minor offences in themselves, such as petty credit card fraud, which is a motif that runs through the way in which terrorists operate, may seem not worth the candle in terms of prosecution to the prosecuting authorities if a sentence is going to be extremely light and it is not going to take the person off the streets for very long, and that is the attraction of having an aggravating factor, but of course it does bring its own difficulties. Again, nothing is perfect in this area and one is looking for something that is less imperfect than the present situation. I could live with a lower standard of proof and a different regime because I think this would have to be done by the judge, not by a jury or the magistrates court or whoever looks at the initial offence, and certainly the committee as a whole did not want to rule that out, and possibly live with a higher sentence for the terrorist link than for the crime itself. An alternative to that might well be Lord Carlile's suggestion of "acts preparatory to terrorism", of which a credit card fraud to finance terrorist activities would be one, and that might be a cleaner and simpler way of dealing with it. Q46 Mr Stinchcombe: You also recommended that there be a more structured disclosure process and I just wonder what kind of structure you had in mind, what it would look like in practice and what kind of regime would these new rules of disclosure provide. Lord Newton of Braintree: This was covered, was it not, in paragraphs 236-239 of the report? I must admit I do not feel that I could add very much to what we have said there. I do not know whether Elaine feels that she could. I think it inter-relates with the exchanges that were taking place with Lord Campbell a few minutes ago. Q47 Lord Campbell of Alloway: It has been fascinating listening to what you and Lady Hayman have been telling us. I hear about lowering the standard of proof. I am not too happy about that at the moment but apart from that do either of you see any substantial improvement that ought to be made in the conduct of these trials? Lord Newton of Braintree: When you say "these trials" you are talking about SIAC hearings, are you? Q48 Lord Campbell of Alloway: Yes. Lord Newton of Braintree: To be frank, we did spend some time debating, not least after we had taken evidence from two or three of the special advocates, whether we should make suggestions that might, at least at the margins, improve the SIAC procedure. The collective view of the committee, and Elaine will correct me if I am wrong in my memory, - and I have got nothing against the judges whom I know in the system and who I think have been doing a splendid job in a difficult context, was that fundamentally we did not regard it as a satisfactory way of seeking to tackle the problem, so we did not really want to spend a lot of time going down the path of suggesting relatively minor improvements in a situation which we thought was fairly seriously flawed. I think that is a fair summary, is it not, Elaine? Baroness Hayman: Yes, that is correct. I would be - and I am speaking now personally rather than from the committee - much more interested in looking at how you could turn the SIAC process, which is after all weighing up the information and evidence in relation to the charges that are being made against an individual, into a first stage process of prosecution rather than an appeal process against an administrative decision to detain. Q49 Lord Campbell of Alloway: What do you envisage? I totally agree with your sentiments. How do you envisage one should go about that? What sort of approach have you in mind in practice about how to do this? Baroness Hayman: For example, if you created a new offence of "acts preparatory to terrorism", if you did set up a system whereby the initial stages of a prosecution were undertaken by an investigating security cleared judge whose responsibility was to amass the information ----- Q50 Lord Campbell of Alloway: Like Scotland, the procurator fiscal? Baroness Hayman: The same sort of thing --- and look at the packaging of evidence that could be then disclosed to the person who was charged, and you then had a system, perhaps as Lord Carlile described, which was not straightforward jury trial and did allow for evidence to be taken in camera from members of the security services and perhaps had an element of the special advocate system within it, you would begin to put together a regime that could possibly allow prosecution without all the damaging effects that have been outlined by the Home Office and by the security services of straightforward prosecution. Q51 Chairman: You have proposed that there should be greater use of plea bargaining in terrorism cases. Do you not think this would raise problems in that the courts would have to be involved in negotiations between the Crown and the defendant as to what should be the appropriate criminal charge? Lord Newton of Braintree: We are back, are we not, Chairman, to the issue of there being no perfect solution to the problems that we all acknowledge have developed in this area, and this is not something that I personally (and I suspect other members of the committee) would advocate in the sort of world we would prefer to be inhabiting. I emphasise again that we are looking at a situation in which we are at present locking up people in Belmarsh indefinitely on the basis that the committee understands and one therefore, at least in our view, must be willing to look at alternative ways of tackling this problem that may not be what you would wish to see in the world you would wish to live in but which could be preferable to what we have got at the moment. Q52 Lord Lester of Herne Hill: Lord Newton, I was very impressed by your report on this. You did deal with it in paragraphs 240-243, for those who, like me, have the sad life of re-reading this kind of periodical, and very good it is too. What you there say very clearly is that the Justice and Home Affairs Council framework decision, the EU decision, in June 2002 on combating terrorism provides (rather sensibly it seemed to me) that if an offender renounces terrorist activity and then basically gives the authorities co-operation of various kinds they could not otherwise get, there may well be merit in giving the suspect, as that decision suggests, greater certainty of outcome as a price for co-operation provided it is structured and not some kind of secret bargain. Speaking for myself it seems to me that that approach, which seems to be an approach in other democratic countries in Europe, is one that ought to be very seriously considered. I do not know how strongly your committee felt about it, whether you would push that now as something rather important, or simply the French point. Lord Newton of Braintree: Once again, if I may say so, you have put your question extremely helpfully and in a way which I would very much endorse. On the question you have asked, which is in effect how much weight would the committee have put on this, I do not think it was as it were top of our list but something that we saw as a significant issue to be considered in the menu context which I have now referred to two or three times in the course of giving evidence to you. Q53 Lord Lester of Herne Hill: And it has the merit, does it not, of being an example of strengthening the anti-terrorist regime to be more effective rather than only being concerned with strengthening the liberty of the suspected terrorists? It is one of those examples, like your one, for example, about detaining British suspected terrorists as well as foreign suspected terrorists. Lord Newton of Braintree: Yes, which is not a point that has come up here but of course is one of our concerns about the fundamental legal basis, if you like, of the current arrangements. I suppose a rather clearer and more straightforward answer to your original question to me was that, since we all know that there may well be negotiations between the prosecuting authorities and a suspect about a lower charge in the event of co-operation or whatever, I cannot see any huge objection in principle to that being done under a measure of supervision from the court and with rather greater certainty and acknowledgement therefore if it helps in this context. Q54 Lord Lester of Herne Hill: If I can move away to the DPP's suggestions, he has suggested that there may be some process changes which might facilitate greater use of the criminal law against suspected terrorists. What he has told us was, for example, extending custody time limits, use of video evidence from overseas, power to interview under compulsion or giving accomplices immunities. What would be your comment on those kinds of ideas? Lord Newton of Braintree: I think you would expect me to say what I am about to say against the background, which I will not rehearse once again, of the difficult overall situation with which we are faced and the absence of any perfect black or white solution. I would not want to rule out consideration of anything that might assist in devising a regime which maintains a proper degree of protection against terrorist acts while removing some of the disadvantages of the arrangements that we have got at present. Q55 Lord Judd: I wonder if we could go back to the anxieties surrounding the issues with which you have dealt, I think, very challengingly. What sorts of risks to the public interest could best summarise the kinds of risks to the public interest which in your view would justify the availability of civil restriction orders on those suspected of involvement in terrorism? What sort of restriction on liberty should it be possible to impose by way of a civil restriction order and, thirdly, do you have any views on what sort of procedural safeguards would be appropriate if civil restriction orders were to be introduced? Might I just, in putting those three questions, say that of course the issue is still there as raised by JUSTICE that civil restriction orders themselves may involve a derogation from the Convention? Lord Newton of Braintree: To the extent that restriction orders involved a derogation from the European Convention then obviously they would run into one of the objections that we saw as a significant objection to the current Part 4 powers, so I think I would want to pause for some time before advocating restrictions which manifestly did breach the European Convention on Human Rights or require a derogation from it, though I would not want to rule out any consideration of them because I continue to think that for somebody to be at liberty (to whatever extent we mean in this context) but in a restricted way is probably better than being locked up in a high security provision with no knowledge as to when you are going to get out, or indeed if you are going to get out. One is back to the balancing act aspect of all this. That would be my answer there. Ideally one of our main aims was to get away from the need for a derogation which more or less nobody else has found it necessary to have to tackle this problem but I would not want to get into the business of ruling out anything which might be better than the position that we have. On your earlier questions, again I am not sure that I can add a great deal to what we said in the report where we indicated what sorts of restrictions we would have in mind, though it was not intended to be a comprehensive list, and so far as the question of safeguards is concerned, clearly, whether it was SIAC or a body comparable with SIAC or a court or some other form of tribunal, there would have to be something that could be seen as some form of judicial process before such restrictions could be imposed. Q56 Lord Judd: Just for our record do you think you could illustrate with an example the kind of risk that you think would lead appropriately to action of this kind? Lord Newton of Braintree: Essentially the same risks that the SIAC regime, the Part 4 regime, is directed at, a situation in which, to be fair to the government and to echo something that Lord Carlile said a little while ago now, a situation in which the government unquestionably has a responsibility to protect the public and to maintain the security of ordinary law-abiding citizens against terrorism and anything else that they needed to be protected from. Where there is credible evidence that that situation arises but in a form where you are felt not to be able to go through a straightforward court and evidence-based trial and, hopefully, conviction, or for that matter acquittal, then you need some alternative way of dealing with it. Those are the sorts of risks that one has in mind. I do not think they are different from the risks we are trying to deal with at the moment. What we are looking for is a different way of tackling those risks and one which might be seen as more ----- Q57 Lord Lester of Herne Hill: In other words assisting terrorists, supporting terrorists, inciting terrorism, maybe associating with terrorists, would all be examples, would they not, of the kinds of very serious risks that might justify a restriction? Lord Newton of Braintree: There are clearly additional risks that you might be able to deal with through restrictions of civil liberties other than those that are currently covered by the SIAC arrangements and, of course, arguably they would be capable of being applied to potential terrorists who are British citizens and not only to potential terrorists who are foreign citizens, which is one of the problems with the regime we have at the moment. Baroness Hayman: I think that they are a much lighter touch weapon in the fight against terrorism, which might mean that they were available for other people who are of concern to the security services but against whom there is not sufficient weight of evidence for them to ask for a detention order under Part 4 because we do accept that the Home Secretary takes this very seriously and it is only the most serious cases that have been dealt with in this way. That does not mean that there is not a penumbra of people who might well be on the "associating with", "giving support to" list, slightly further away but still within the ambit of terrorism for whom a civil restriction order might be a perfectly appropriate way forward. While I take the point about the derogation, we do manage it in other areas of civil restriction orders, whether it is ASBAs or whatever, so one would hope to be able to get a regime that did not require a derogation but did allow you to have some sort of restriction on movement of people about whom there was a legitimate concern. Q58 Lord Lester of Herne Hill: Presumably it would have the advantage of, in this area, transparency in that the person subject to the order would know that they were subject to the order and if it was completely arbitrarily or discriminatorily imposed they could challenge it by way of judicial review, if that was the appropriate method, so that there would be procedural safeguards and yet, as Lady Hayman has indicated, it would be a much more proportionate way of dealing with that category of people who also could be under surveillance. Baroness Hayman: I think we have to understand and accept what the security services would say to us, that with the most sophisticated of terrorists this might not be a sufficiently robust regime. Q59 Lord Judd: I have a lot of sympathy with the line that you are advocating. Would you agree that one of the things that it would be very important to be vigilant about is that by introducing this apparently softer approach (for want of a better term) as the main approach one did not inadvertently begin to slip into an area where more people were brought into the net than would otherwise have been brought into the net because there is a softer approach? Lord Newton of Braintree: It has to be said almost as a matter of logic that it is an inescapable risk that if you have a regime which is perceived to be more acceptable there will probably be more likelihood that you feel you can make use of it, so you certainly do not get away from the need for safeguards. At the moment I would think that the greater risk, particularly in respect of those who do not fall within the ambit of this, which is all based on the immigration legislation, is that people against whom action might sensibly be taken do not have any action taken against them because the law does not provide anything that you can do about them. Baroness Hayman: There is a theme in our report which is that we start off by saying that government does have a duty to protect citizens and one of our criticisms of the present regime is that it does not deal with the full range of people who may be posing a threat to national security and that is very obvious in terms of British citizens because they are not there and so this would be a potential measure for dealing with some British citizens who pose that level of threat, but it also could potentially be - and we did have evidence that was open - that the detainees are not the only people about whom the security services have concerns about terrorist links at the moment. If more people were brought within the ambit I think I would challenge you that that is not necessarily a bad thing if it gives a proportionate or higher level of protection to the public. Q60 Lord Lester of Herne Hill: The government in their discussion paper said that they thought that the powers they have are so draconian that they would be difficult to justify in being applied to British citizens. What is your comment about that? Lord Newton of Braintree: In one sense I understand and sympathise with that, which is why we are not terribly enthusiastic about the powers. I thought it was an extraordinary sentence to describe these powers as draconian and therefore inappropriate to be applied to British citizens. Leaving aside semantic argument of any kind about the meaning or use of words, as a committee we certainly were not advocating the generalisation of SIAC powers under some other guise to all citizens. We were looking for potential alternatives but undoubtedly that sentence does reflect what seemed to us an unsatisfactory position, that powers that are said to be necessary to deal with a terrorist threat can only deal with a terrorist threat if it comes from somebody who happens not to be British, which seems to me and to the committee to be a curious situation. Elaine was one of those who focused on this at a very early stage in our deliberations and I think felt quite strongly about it. Baroness Hayman: We did receive evidence, and it is very obvious from the prosecutions under the Terrorism Act, for example, that this is not a wholly non-UK phenomenon and therefore in looking for measures that are efficacious as well as not unnecessarily intrusive into civil liberties one has to say that the present powers fail on those grounds. Q61 Chairman: You have both referred to the derogation. At the moment we as parliamentarians have to take on trust that the government was right to derogate from the fundamental rights and freedoms on the grounds that there was a public emergency threatening the life of the nation. Can you think of any way in which Parliament itself could be enabled to come to a properly considered judgment as to whether or not this was right? Lord Newton of Braintree: My straightforward answer to that, I am afraid, is no. At the end of the day it is extremely difficult to see that anybody other than the government can make that judgment. It seems to me on the division of responsibilities, if you like, that it is for the government to make that judgment and for Parliament then to make a judgment about what is a proportionate and acceptable response to that threat if it exists. No doubt people's view on that latter matter will in part be influenced by whether or not they accept the government's judgment but I simply do not see how Parliament could devise some alternative way of having a parliamentary procedure to decide whether or not there was a sufficient risk to security to justify special measures. I do not know whether any of the distinguished parliamentarians here do. It is not my business to turn the question round, but I certainly do not. Baroness Hayman: I am not sure whether there is any role for the Security and Intelligence Committee in this conundrum, whether it would be possible for Parliament to have a view from that committee alongside as commentary, if you like, but I suspect that Lord Newton is right, that fundamentally the information on which that judgment is based is going to be very difficult to expose to full parliamentary scrutiny. I would be interested to know whether the Security and Intelligence Committee did feel that they had any role in such a situation. Lord Newton of Braintree: I should have thought that they were the nearest thing to an aspect of Parliament, so to speak, that could express a view. As I recall there was a certain amount of fencing between your committee, Chairman, and ours at some earlier stage of these proceedings when each of us was slightly trying to pass the buck to the other was the flavour I remember from the exchanges we had, and I can see there might be a role for the Intelligence Service Committee to offer a view, but I do cleave to the view - and you have to allow for the fact that we are both former ministers - that at the end of the day within our constitutional arrangements you cannot take away from Her Majesty's ministers the responsibility to form a view on whether or not there is a threat to the public safety. I think that is fairly fundamental - and I do not know what the Home Secretary's job description says in this respect - but I do know that all our conventions lead me to the view that ultimately he with his colleagues and ultimately the Prime Minister have got the uncomfortable task of making that judgment. Q62 Lord Lester of Herne Hill: Is not the position this, that it is for the minister to take advice from the Security and Intelligence Services and form a political judgment? Lord Newton of Braintree: Yes. Q63 Lord Lester of Herne Hill: The minister must then be accountable to Parliament for that judgment and ultimately he is accountable to the European Court of Human Rights for that judgment since, if the derogation is not properly made, they would so decide and he has to find some way of explaining himself to them, but the danger of adopting the suggestion - and I do not think it was a concrete one - that Lady Hayman made of using the Security and Intelligence Committee would be that then in some way the minister could shelter behind that committee and that committee could shelter behind the Security and Intelligence evidence, whereas it is really a political judgment that has to be justified in the last resort in Parliament and before the European court. Lord Newton of Braintree: Once again very well put. One can illustrate the reasons for my concern, because I certainly was not ruling out the referring for any view the Intelligence Committee might want to offer, but at the end of the day if whatever committee said, "We do not think there is a risk", and the government was absolutely convinced that there was and that there was about to be some massive terrorist incident or whatever, I do not think the government could afford to allow its judgment to be overridden in the way that is presupposed in the original question, and could be involved in regarding it as a matter to be delegated to the Intelligence Committee or any other. Baroness Hayman: I was not suggesting derogation in this area. I think the Chairman was trying to find a way for Parliament not to challenge in these circumstances --- Q64 Chairman: And to test the evidence. Baroness Hayman: --- and to reassure itself in some way. As Lord Lester says, it is a political decision and eventually the European Court of Justice will decide it. We are getting then into a Lieten(?) situation. Q65 Chairman: Absolutely. Baroness Hayman: And I thought you were talking more about the politics --- Q66 Chairman: I was. Baroness Hayman: --- and allowing us to then form a judgment about proportionality because a lot of this flows from how strong the emergency is. Q67 Chairman: Yes. I was talking specifically about Parliament. Lord Newton of Braintree: I have already said that at the end of the day the judgment that Parliament made on this or any other legislation that it was asked to pass will partly depend, undoubtedly, on how convinced it is of the credibility of the problem which the legislation is said to be required to address. The observations of a committee might be helpful to some people in making that judgment but it does not take the responsibility away from the government for making its judgment about what the risk is and therefore what to ask Parliament to do. Q68 Chairman: Lord Newton and Baroness Hayman, thank you both very much for coming to appear before us today. It has been a fascinating session. Following on from what you said on a couple of occasions, Lord Newton, we are now living in a world that none of us expected to be living in and being forced to make judgments and decisions none of us ever thought we would have to make. Nevertheless, whatever we can all do as parliamentarians in ensuring that we have the best obtainable system is surely very useful, so thank you very much. Lord Newton of Braintree: Thank you for the courtesy of your interrogation. I hardly needed the water. |