Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing Human Rights Back In - Human Rights Joint Committee Contents

Examination of Witnesses (Questions 1-125)

RT HON DAVID HANSON MP, MS CATHERINE BYRNE AND MS JENNIFER MORRISH

1 DECEMBER 2009

  Q1  Chairman: Good afternoon, everybody. This is a session on Counter-terrorism Policy and Human Rights of the Joint Select Committee on Human Rights. We have been joined by the Minister of State for Policing, Crime and Counter-terrorism, David Hanson, MP, by Catherine Byrne, who is head of the Office of Security and Counter-terrorism in the Home Office, and Jennifer Morrish is from the Legal Advisors branch of the Home Office. Welcome to you all. Do you want to make any opening remarks, David?

  Mr Hanson: No, I am quite happy, Chairman, for the Committee to ask any questions it wishes.

  Q2  Chairman: Perhaps we can start off with some questions on the question of torture. We have obviously had your response to our comments on that. I think one of the real concerns we have is over the definition of torture which the Government has come up with. Perhaps we can ask you some questions around that. Do you agree with the Committee's view that the systematic receipt of intelligence which is known or thought likely to have been obtained from detainees subject to torture, or in circumstances where the use of torture should have been known, amounts to complicity in torture?

  Mr Hanson: Thank you, Chairman. I want to state at the outset that the British Government, myself as the Minister and the Home Secretary, condemn the use of torture, do not endorse the use of torture, want to see the eradication of torture, will not support the use of torture by other regimes passing information to us and want to ensure that the information that we get has been secured through means which are supportive of human rights and are supportive of the non-use of torture. That is the position that we take, and in fact, the Prime Minister in his Written Ministerial Statement, which the Committee will be aware of, on 18 March this year, reaffirmed that principle very strongly, and I have reaffirmed it publicly since then, and I think that is a principle we would seek to uphold.

  Q3  Chairman: I think the real difficulty is the definition that you produce in your reply, when we are talking about what "complicity" means. Our report, I think, came up with what is generally recognised as the international definition of complicity, but the definition that your response came up with was "The Government's position is that the receipt of intelligence should not occur where it is known or believed that receipt would amount to encouragement to the Intelligence Services or other States to commit torture." That is a much more restricted definition of what "complicity" would be, compared to what our understanding of international law is, as set out in our report. Where does that definition come from?

  Mr Hanson: Again, Chairman, all I can do is reiterate what our view is, that we do not believe we are complicit with the use of torture. Our definition of "complicit" means, as I have said, that we do not support it, work to remove it, signed up to agreements to end it, will not work with regimes that use it and are trying to have some integrity about the information that we get. Again, we have to look at those issues in the round; there will be occasions when information will come to us where we are not, occasionally, aware of the source of that information; we will take stringent efforts to make sure that we do not use torture in any of the regimes that we work with or operate upon, and from my perspective when I say we are not complicit I mean we are not complicit in the use of torture.

  Q4  Chairman: Perhaps I could put some specific points to you, as our understanding of what "complicity" means and you can respond when you agree with our definition. We are not talking about individual cases, we are talking about the context. Would you agree that complicity would include asking a foreign intelligence service known to use torture to detain and question an individual?

  Mr Hanson: I am sorry?

  Q5  Chairman: Would you agree with us that the definition of complicity in international law would include asking a foreign intelligence service known to use torture to detain and question an individual?

  Mr Hanson: Well, again, I can only re-emphasise, Chairman, that we would not regard, from my perspective, the Government as being complicit in the use of torture, so we would not endorse the use of torture by another regime, nor would we ask a regime to use torture, nor would we knowingly receive information from a regime that used torture, nor would we encourage that use; indeed, as the Prime Minister has said, we would seek to eradicate that use by working through international agreements to do so.

  Q6  Chairman: I have got that, but what we are trying to work through is a very specific definition in international law of what "complicity" is. I understand the Government's policy is it does not like anything to do with torture, and that is fine, but it has a very specific meaning in international law, and the definition that you came up with in your response to our report on that does not match, as far as we can see, international law; in fact, it is an entirely new definition. That is our main concern, which is why I am putting these very specific points to you. So the first point that is part of international law is this: it is complicit if you were to ask a foreign intelligence service known to use torture to detain and question and individual. Would you agree with that?

  Mr Hanson: We have to work, Chairman, with a number of regimes and we will work with a number of regimes to secure information for the protection of the British public, which is what the whole service that we operate in is about, but we would not encourage, solicit or endorse the use of torture. It does not mean, from my perspective, that we would not work with regimes potentially who have information which is secured by other means but not in relation to the information that we are supplied with, because from my perspective we have to look at what the security of the British public is and what regimes we work with, and there are regimes, occasionally, that we do not agree with, we do not support but, ultimately, we also have to work with.

  Q7  Chairman: I will come back to that more general point in a minute, but I am asking you some very specific questions. Let me try the second one: would you agree that a State is complicit if it provides the information to a foreign intelligence service known to use torture enabling that intelligence service to apprehend an individual?

  Mr Hanson: Again, Chairman, we are going down the route of a number of specific points. I am trying to say to you, in overall terms, that the British Government does not support torture and will not encourage the use of torture and will not work with regimes that use torture, but we will examine information that comes to us and have to make judgments about it with regimes sometimes that are not supportive of that. I cannot specifically comment on a range of individual, specific points without further consideration.

  Q8  Chairman: These were, actually, in our report as an analysis of what international law requires and states as being the definition of "complicity". I fully understand the general point you are making, but it has to be tested against the very specific requirements of international law of what complicity actually means. It is not as though you have not had notice of this because it was in our report from ages ago about what all this was, and you responded to it by the very general assertion about encouragement, or not encouragement—however you want to put it. What I am doing is testing that definition you have come up with against the actual definition in international law. So the third question (I will put this one to you): do you agree that a State which gives questions to a foreign intelligence service to put to a detainee who has been, or is being or is likely to be, tortured amounts to complicity?

  Mr Hanson: Again, Chairman, I can only reiterate my general point on that which is that we would not work with a regime that undertakes torture in the way in which you describe there, because from my perspective the purpose of British Government policy is, as the Prime Minister has indicated and I have indicated, exactly as I said to the Committee this afternoon.

  Q9  Chairman: What about setting interrogators to question a detainee who was known to have been tortured by those detaining and interrogating him?

  Mr Hanson: Again, Chairman, I can be no clearer than saying what I have said to date, in that we have condemned the use of torture across the board, and I cannot go down the route of hypothetical questions which you are putting to us today because the principle position of Government is not to involve ourselves in torture, not to encourage it and not to be complicit with it in the broader sense that I am describing to the Committee.

  Q10  Chairman: These are not hypothetical questions, David; this is actually the definition in international law. I am simply asking you whether you accept what international law says amounts to complicity. I am not saying whether the Government has done it or not done it; I am simply putting to you the definition in international law of what complicity is and trying to establish whether the Government actually accepts what international law says about this rather than the new definition that you have come up with.

  Mr Hanson: We have been very clear, and I hope I had been clear to the Committee, and the Prime Minister has been clear to the House, that we accept the principles of international law in relation to torture.

  Q11  Chairman: If that is the case, why can you not accept the premises that I am putting to you as to what international law says amount to complicity?

  Mr Hanson: Chairman, I have tried to be clear in my terms as to what I understand, what I mean and what the Government policy is in relation to torture; I can only be as clear as I can in relation to the Committee as to what our belief is.

  Q12  Chairman: Let me try another one: is a State complicit if it has intelligence personnel present at an interview with a detainee in a place where he is being or might have been tortured?

  Mr Hanson: Again, Chairman, without going into the micro-focus of that I can only simply say what I have said already, which is we are not supportive of the use of torture. Therefore, by implication, the British Government would not support the individuals being present when torture is undertaken.

  Q13  Chairman: What about a State that systematically receives information known or thought likely to have been obtained from detainees subjected to torture?

  Mr Hanson: Again, Chairman, on all of these issues I have become a bit of a repetitive record, in the sense that I can only say to you the broad government policy. The guidance which we have already indicated we are going to be publishing, which is currently before the ISC Committee, which the Prime Minister has indicated in his—

  Q14  Chairman: We will come back to that.

  Mr Hanson: —WMS of the 18th—that guidance will be specific about the circumstances in which British Government operatives will be working in relation to the broad objectives I have set.

  Q15  Chairman: I am not going to put to you any more of that, because I do not think we are going to get very much further with that, but we have obviously had correspondence with the Foreign Secretary and the Home Secretary, who would not appear before our Committee, and, also, with MI5, who would not either, although there have been lots of statements from them elsewhere. Is it a fair interpretation of the comments of the Director General of MI5 in his lecture called Defending the Realm and the position of the Home and Foreign Secretaries that they are saying that, at least in the wake of 9/11, the receipt and use of intelligence which was known, or should have been known, to have been obtained under torture, in order to protect the UK public from possible terrorist attack, was the lesser of two evils?

  Mr Hanson: I think it is fair to say, Chairman, that there will be information supplied to the British Government which potentially could save lives at certain times in the cycle since 9/11, and sometimes it is not clear about where that information originally has derived from. However, I think it is the duty of the Government to use that information for the protection of British citizens, while still maintaining, as we have tried to do, through the written ministerial statements on 18 March and through statements I have given to the Committee today, that we believe, overall, that the use of torture is not a thing that we would support, and all the issues I have mentioned earlier.

  Q16  Chairman: In our previous work on torture, what we have said is: "Look, if you get an odd bit of intelligence coming in that would protect or defend the British public from terrorist attack, nobody in their right mind would say that that information should not be used." We accept that. What we are putting to you, though, is a rather different position when it comes to the definition of complicity—all the things I have mentioned. You talk about encouragement, but the systematic receipt and use of evidence that might have come from torture, ultimately, will start to create a position of, as you called it, "encouraging" and, as we would say, "complicity". What we are concerned about is not the one-off piece of intelligence; it is consistently receiving this information and using it which, ultimately, amounts to the systematic receipt which, ultimately, is de facto encouragement.

  Mr Hanson: Again, Chairman, I hope I can be clear for the Committee that it is our policy that we should not be receiving information where it is known or believed that the use of torture has elicited that information. That is a clear policy statement from the Government which will be put into practice through guidance to operatives on the ground: we should not be receiving information elicited through torture. What I am saying to the Committee is there are occasions where relations with governments means that sometimes we are not sure of the provenance originally of some of the information, and if it does show information which is of concern to the Government we need to act upon that. It is a clear statement that we should not be encouraging or deliberately receiving it.

  Q17  Chairman: As I have said to you, nobody on this Committee would argue that if there is a piece of intelligence that comes forward that can save lives we should not use it. We have accepted that in our previous reports about this. The real issue is whether this is systematically coming from the same or similar sources or from the same or similar countries which are known to have a bad reputation, and nothing has been done about it. I think most of our Committee would say that that is, effectively, condoning it and making our country complicit in what is going on in those bad practices.

  Mr Hanson: Again, Chairman, if I can re-emphasise to the Committee that it is quite clear from ourselves that we do not even wish to encourage the receipt of information which has been undertaken through the committing of torture and, as a government, we would not encourage that receipt of information. Again, I cannot be any clearer than what I have tried to say in relation to the Government's overall policy; that has downstream consequences for operatives. The downstream consequences are being worked through now with guidance which is before the ISCT and we want to ensure that that is put into practice in an effective and fair way to implement British Government policy in whichever far-flung corner of the world our operatives are working.

  Q18  Chairman: Have you seen the Human Rights Watch report that came out last week called Cruel Britannia—British complicity in the torture and ill-treatment of terror suspects in Pakistan?

  Mr Hanson: I have seen the report, but I have not, as yet, looked at it in great detail. I am aware of it.

  Q19  Chairman: That document is an account from victims and families about the cases of five UK citizens of Pakistani origin who were tortured in Pakistan by Pakistan security agencies between 2004 and 2007, and it very much chimes with evidence that we have received from a number of different sources in our inquiries. Will the Government now consider an independent public inquiry into all these allegations to try and get the air cleared and to prove beyond a shadow of a doubt that what you have been telling us today is, in fact, the case?

  Mr Hanson: The government has rejected the idea of a public inquiry for the simple reason that these allegations have been made, we have responded to the allegations in Parliament, those allegations have been, in some cases, referred to in court cases, where the judges who have examined those court cases have rejected those allegations. In one particular case the judge in Mr Ahmed's case said: "I specifically reject the allegations that British authorities were outsourcing torture". The judgments are available publicly and I think that has been a fair assessment of the allegations that have been made.

  Q20  Chairman: We can look at the court judgments and, in particular, Binyam Mohamed, which goes the other way. If you are not going to have a public inquiry, fine, but will any of these allegations be referred to the police to investigate?

  Mr Hanson: At the moment, those allegations, I think, we have responded to. I will look at the report in detail, which I have not had a chance to do as yet, but I do not believe they form the basis of any further allegations that need to be investigated.

  Q21  Lord Dubs: Have there been in the past any instances where you have had to take action because operatives have been present when, by your policy, they should not have been?

  Mr Hanson: I certainly have not had anything across my desk to that effect, my Lord, but I cannot speak for Ministers previous to myself, but I am sure that would be the case.

  Q22  Earl of Onslow: Minister, I must admit I think it is very unsatisfactory that a Minister cannot answer a totally straightforward question on the legal meaning of "complicity". It seems to me that that is what Ministers are for, to give accurate answers and well-thought through answers to a Select Committee. May I ask you, please: it is alleged, and is I think reasonably well established, that the Pakistani intelligence services have been, at the minimum, roughing people up or, rather more accurately, beating people up. Has the Government any knowledge of this or is it going to say that it does not happen and it knows nothing about it?

  Mr Hanson: Again, I would welcome specific allegations. I have not seen any specific allegations in front of me, with the exception of those allegations that have been made that have been before the courts where they have been addressed by the courts and where no allegations have been found to have fact based upon them. I will simply say, again, in relation to the British Government's policy, that the Foreign Office, through the Foreign Secretary, will and has made representations to the Pakistani Government about British Government policy, and British Government policy, as I have described it to the Committee, will be the cornerstone of how we approach our relations with other governments, including Pakistan.

  Q23  Chairman: You say you have not had any notice of these, but they are in our report: pages 7 and 8 about Pakistan, and page 9 about Egypt; the allegations about complicity in Uzbekistan—there are four or five pages of these allegations about which, obviously, there is more detail in the evidence at the back, but just in highlighting them in our own report. So it is not as though you have not had notice of them.

  Mr Hanson: I am saying, Mr Chairman, that in relation to the specific question from the noble Lord, Lord Onslow, in relation to what action the British Government has had in receipt of information about allegations in Pakistan, and what action we have taken, I have simply said to the noble Lord that we have, through the Foreign Office, made our position very clear, are upholding the position in relation to torture, as I have described to the Committee, and will continue to do so, and will not receive, as I have described to the Committee, information that we knowingly have had which has been derived from the use of torture.

  Q24  Chairman: The Foreign Affairs Committee have also come to the conclusion that the Pakistan security services are involved—

  Mr Hanson: I cannot be any clearer than what I have tried to be, Mr Chairman, which is to simply say that we will not accept information that we believe has been derived from torture, and if allegations are shown to the effect that information has come, we will not accept it. We have made, and will continue to make, representations about standards through the Foreign Secretary to other governments, including Pakistan, if those allegations come forward for investigation.

  Q25  Earl of Onslow: The new Government Bribery Bill, on whose Select Committee I sat, is very clear about making it extremely difficult for those who bribe foreign governments. The argument there is that if anybody bribes it encourages it. Presumably, exactly the same argument applies to receiving information derived from torture: the more you receive information derived from torture the more you encourage the ungodly to reach for the electrodes.

  Mr Hanson: Again, if I can say, my Lord, I cannot be any clearer than I have tried to be to date: the Government would not willingly receive information from Pakistan or any other source if it knew it was derived from the use of torture; it will not condone it; it will seek to eradicate; it has campaigned against it. There will be occasions where, potentially, we do not know the source of information, as I have indicated, but that source of information, when we know it, will not be used by this Government.

  Q26  Lord Dubs: Could we turn to another issue, please? In March 2009 the Government agreed to provide the ISC with its guidance to the intelligence services. It took eight months for the ISC to get that. Was there any reason why it took so long?

  Mr Hanson: I think, my Lord, I am as frustrated, if I may say so, as indeed I know the Committee will be, about the slowness of this process. The Prime Minister indicated in March in the WMS we would supply guidance and tried to get this matter resolved. We have had to have serious discussions in government with the Ministry of Defence, with the security services and with others to prepare the guidance. That guidance has been submitted to the ISC and I would want to see that guidance produced following consultations, as soon as possible, and I want to see it for the Committee's benefit but, also, for the public benefit, published in a form which the public can see, understand and scrutinise.

  Q27  Lord Dubs: One of the reasons given to the ISC was due to the "complex legal nature of these issues." That sounds a bit like out of Yes, Minister, does it not?

  Mr Hanson: There are complex issues, and anybody—as the Committee will have—who has looked at this issue in detail will know that there are a range of issues in relation to the guidance and how it will be used downstream by people who are putting their lives at risk for this country. I think that is a fair assessment to make in relation to our legal obligations. I want to see it published; I want to see it made public for scrutiny and I want to see that as soon as possible. I hope that the ISC will complete its conclusions shortly so that the Home Secretary, Foreign Secretary and Prime Minster can finally deliberate upon it.

  Q28  Lord Dubs: Thank you. I think the Government referred to "consolidating" the previous separate guidelines into one version. Have there been any changes in that process of "consolidation" or has anything been left out or put in? Or is it a straightforward consolidation without any changes to the original versions?

  Mr Hanson: The guidance, ultimately, will be published, and I think it is fair to say that until such time as it is published I cannot comment upon what the format of that guidance is, because it has gone through several alliterations, there are discussions in government and now with the ISC. I hope the Committee will understand it will not have to wait too long, I hope, before that guidance is published.

  Q29  Chairman: What has gone to the ISC is the issue here; it is not what was published, because, obviously, we accept that it may not be entirely publishable, but what has gone to the ISC. Does the ISC material that has been given to them have everything that was in the previous versions, or have they been given an updated version that leaves bits out—effectively, sanitising it?

  Mr Hanson: We have agreed, as you know, not to publish previous versions of the guidance, and I stick by that principle. We are publishing, in due course—

  Q30  Chairman: It is not publishing—it is to the ISC.

  Mr Hanson: The ISC will independently make their judgment on the guidance that we have submitted to them and we have given them a version of guidance that we have submitted following discussions in government. We have submitted it to the ISC; they have had it since May, the consolidated version, and we are now at the stage where we are waiting for—

  Q31  Chairman: "Consolidated" means everything, all together. Is it consolidated or is it somehow redacted compared to everything—

  Ms Byrne: They had the raw material from the different sets of guidance that existed, and they have now got the consolidated version that brings all of that together. That is what they are looking at.

  Q32  Chairman: Nothing has been left out?

  Ms Byrne: They have all the sets of material that we were able to give.

  Q33  Chairman: So what they have is—nothing has been left out of previous versions, compared to what has gone to the ISC?

  Ms Byrne: Some words may have changed because we have brought the guidance together in a consolidation.

  Q34  Chairman: I understand that.

  Ms Byrne: What they have got is what we had.

  Q35  Chairman: So they have got everything that was originally there without any redaction.

  Ms Byrne: Yes.

  Q36  Chairman: From that you have synthesised it into a consolidated version.

  Ms Byrne: I am sorry, can you say that again?

  Q37  Chairman: From that you have synthesised it into a consolidated version.

  Ms Byrne: Yes.

  Q38  Chairman: So there is nothing at all that you have produced on this that they have not seen?

  Ms Byrne: They have got what existed in May and they have got the consolidated version.

  Q39  Chairman: Have they got all the earlier versions as well?

  Ms Byrne: I am not sure how many earlier versions they have had, but they have the guidance that existed in May and they now have a consolidated version.

  Q40  Chairman: What about that from before May? Do not forget you are going back here a number of years.

  Mr Hanson: I have been in this post since June; I do not know what the guidance was prior to May. My colleague, Catherine Byrne, has indicated that it is a Cabinet Office initial responsibility. I will be very happy to follow up to the Committee with a letter on the detail of that post-session today.

  Q41  Chairman: I think what we would like to know is roughly what dates there were versions available. Obviously, there is an argument about what was published but, presumably, the date of a particular document—

  Mr Hanson: I will give a commitment to the Committee to formally drop a note to the Committee about the guidance and on what it was based. Whatever I can tell the Committee I will do so, but some of this is before my time and I am afraid I do not know the detail.

  Q42  Lord Dubs: Just one last question on that: you did say that the Government had refused to publish the original version of the guidance. I am not quite clear why you have refused that, given that it is going to be in the consolidated version.

  Mr Hanson: Again, we have taken a decision to publish the guidance that we finalise in due course. I think it is fair that we publish that guidance in due course, and we do not have historical examination of what guidance was operated previously. That is a judgment we have made, it is the judgment the Prime Minister has made in relation to his WMS in March, and I hope the Committee can accept that. The principle that we are putting to the Committee, and to the public, is that we will compile guidance, it will reflect the policy I have outlined to the Committee today and it will be open to public scrutiny—and it will be, which is equally important, open to scrutiny from independent sources on a day-to-day basis as to how it is executed downstream.

  Q43  Lord Dubs: You will see this question coming: I suppose if we look at the events documented in the Human Rights Watch report we do not know what guidelines were relevant at the time to see whether they were being adhered to or not. That is the difficulty with the way it is happening.

  Mr Hanson: I accept that. My assessment is that the Government's policy has been implemented previously as well as now, and I hope that the Committee will accept that we are going through a stage whereby, previously, there was no published guidance, there was no external scrutiny, there was no reporting to Parliament as there will be once this guidance has been completed.

  Q44  Chairman: That is all very helpful but it does not actually get over the problem. You say "the Government has taken a view" and it is your policy—I understand that—that there should not be historical analysis of what has gone on as regards the documentation, but that is exactly what is needed to check whether, in fact, the allegations that have been made, if they were true, were in accordance or contrary to the guidance that was in force at the time. It is impossible to hold the security services properly to account—whether it be the ISC or otherwise—without access to the guidance in force at the time the allegations were supposed to have happened.

  Mr Hanson: I think, Mr Chairman, you will accept that the allegations that have been made have been tested in court and have been rigorously examined by the judicial process.

  Q45  Chairman: Not all of them.

  Mr Hanson: What we are trying to do is to put on a square and even footing with public scrutiny and with independent examination what operatives will undertake on the ground in relation to British Government policy on the use of torture.

  Q46  Chairman: If there is nothing to hide why not produce the documentation?

  Mr Hanson: The Prime Minister and colleagues have taken decisions in relation to the previous guidance. The decision has been taken by the Prime Minister in relation to the examination because, as has been said by myself earlier, the previous guidance has not been open to scrutiny; it would not be, in my view, fair and proper to open that up to scrutiny; any allegations that have been made have been tested in court and the principle of this is now that we are putting on to the record a fair and open guidance for public scrutiny for future use.

  Q47  Earl of Onslow: If it is consolidated—Ms Byrne said it was—

  Ms Byrne: Yes.

  Q48  Earl of Onslow: If it is consolidated, you are telling us that there is no change. If there is no change why not publish the original documents? Just because the Prime Minister has made up his mind, that seems—any sensible man when faced with something which might be wiser should be open to changing their mind. I know this is impossible in politics, but there you are. We could have a first.

  Mr Hanson: It does happen occasionally, Lord Onslow, as you know. I think several allegations have been made in the last week that have been changed by the Leader of the Opposition, so it can happen. The Prime Minister has determined, and I think that this is a right and proper thing to do, that certain allegations have been tested in the courts, the guidance that was operational prior to the existing procedure is historical, and the Prime Minister and colleagues have determined that we want to be open about this. That is the process that we are under now.

  Chairman: Let us move on.

  Q49  Mr Timpson: Can I ask some questions around the scale of the terrorist threat facing the UK. In the letter dated 3 August 2007, the Government said that its position on whether or not the UK faces "a public emergency threatening the life of the nation" has not changed since 2001 when it derogated from Article 5 of the ECHR. Is it still the Government's view that the UK faces a public emergency threatening the life of the nation?

  Mr Hanson: The public emergency threat, Mr Timpson, as you will know, is assessed by JTAC which is the Joint Terrorism Analysis Centre, which reports to Ministers in terms of advice, but is independent of Ministers in terms of its assessment. It has recently, in the last few months, looked at the current terrorist threat and has downgraded the threat from "severe" to "substantial". The definition of "substantial" is still extremely serious for the potential threat to this country, in that "substantial" means an attack remains a strong possibility. JTAC, on a weekly basis, examine the level of threat and look at this issue on a regular basis. The threat could go up or down at any particular time but the current assessment is "substantial", which means an attack is a strong possibility. If we look at the position since 9/11—which was now eight years ago—we have had, since that time, some 217 convictions for terrorist activity in the United Kingdom and we currently have 29 individuals awaiting trial. So that there is a real and present threat which, on a weekly basis, as a Minister with the Home Secretary, we see and are aware of acutely.

  Q50  Mr Timpson: We have seen, from June 2007, when the level was raised to "critical", then it was dropped in July 2007 to "severe" and then in July this year to "substantial", yet throughout that whole period since 2001 the Government has still said the UK is facing a public emergency threatening the life of the nation. How does the downgrading of the threat to "substantial" from "critical" sit with the Government's position, which you seem to still be holding today, that we are facing a public emergency?

  Mr Hanson: I think, Mr Timpson, that if you examine, as we do, on a regular basis the intelligence that crosses our desk in relation to the potential threat to the United Kingdom, we would still uphold that there is a potential public emergency for consideration and for preparedness by the Government, not just in terms of the major threat to the United Kingdom, which is still Al-Qaeda-inspired terrorism, but if we look at the situation in my old government post in Northern Ireland there is a dissident Republican threat to parts of the United Kingdom which is severe. There is a small but significant extreme right-wing threat to the United Kingdom from internal sources. The main thrust is still there and the JTAC assessment is still, from my perspective, that an attack is a strong possibility. That is the definition of "substantial". I think we would be failing our duty to the British people if we did not prepare both the response to that attack and, secondly, the prevention of that attack through disruption of terrorist means and, thirdly, the longer-term examination which we are undertaking through the preventative agenda of how we can stop some of the potential radicalisation of individuals in the United Kingdom as a long-term objective. That is part of our response to that emergency situation.

  Q51  Mr Timpson: In answer to that question you have talked about the potential public emergency as opposed to a public emergency, which would seem to fit in more with the downgrading of the threat; rather than it being a public emergency, it is now a potential public emergency. Which are we dealing with here? Is it not important that the whole idea of a public emergency is not devalued by the fact that we have a changing threat level throughout that period?

  Mr Hanson: The threat level—and this is the key point for the Committee to recognise—at "substantial" still is, and I quote, "an attack is a strong possibility". As long as an attack on the United Kingdom is a strong possibility I think, as Minister, with the Home Secretary, with the Prime Minister and with colleagues in the security services, we have to ensure that we plan for that attack, we disrupt those attacks and we look at monitoring the potential for those issues on a regular basis. The information that crosses my desk and my colleague, the Home Secretary, on a regular basis indicates that there are still live individuals who are seeking to do great damage to the United Kingdom and we need to both work with those in terms of preventing that emergency position and ensure that we keep our security forces and our responsive forces at high critical alert to ensure that if that attack happens, which is a strong possibility, we are prepared for it, and indeed we are prepared to try to prevent it happening in the first place.

  Q52  Mr Timpson: What would the threat level have to drop to for there to no longer be a public emergency?

  Mr Hanson: The threat level has two further stages to go, which is "moderate", which is an attack is possible but not likely, or low—

  Q53  Mr Timpson: Would there, therefore, no longer be a public emergency?

  Mr Hanson: I think, as a Member of Parliament and, indeed, as Members of the Committee, you would expect the Government to maintain a strong focus on the potential for public emergency. From my perspective, when we are faced with an attack being a strong possibility that, for me, remains a public emergency. We need to have the response from the security services but, also, the response and planning from police, fire, from health services and others to ensure that in the event of that happening—which it could tomorrow, which it could next week, which it could next month—we have both the preparedness to disrupt it but, also, the response capability to deal with it in the unlikely event, I hope, of it happening, but in the potential that it is still a strong possibility.

  Q54  Chairman: Does "low" still count as a public emergency?

  Mr Hanson: "Low", as you will know, Chairman, is an attack is unlikely, but if I sat here and I was asked by the Committee "Are we preparing for an attack", even if we were at the "low—an attack is unlikely" scenario, and I said to the Committee: "No, we are not", the Committee would be challenging me—

  Q55  Chairman: That is not the question. The question is: does "low" equate to a public emergency threatening the life of the nation?

  Mr Hanson: I will give you my definition: as long as the threat level remains as "substantial", where an attack is a strong possibility, I think we are in a situation whereby we have a potential public emergency which we need to prepare for.

  Q56  Chairman: When was the last time we were at "low"?

  Mr Hanson: That is a very good question, Mr Chairman. It is not in my time. Not in Catherine's time. Again, if the Committee wishes—

  Q57  Chairman: It is probably decades. The inference is that we are in a permanent state of emergency threatening the life of the nation. How can that be?

  Mr Hanson: I am sorry, I missed that question.

  Q58  Chairman: The inference is, because it is probably decades since we were last at low—whether it is the IRA or the Al Qaeda, or whatever it happens to be—that we are in a permanent state of public emergency threatening the life of the nation. Is it not?

  Mr Hanson: I am afraid, Chairman, that, at the moment, I think that probably is the case, in that at any time—

  Q59  Chairman: Not "at the moment", but going back decades. If you are using the same test, and the criteria have not changed much, and if we have not been at "low" for decades, which I think is probably the case—probably even before the Troubles in Northern Ireland—then that means that the country is in a permanent state of public emergency threatening the life of the nation. Does it not?

  Mr Hanson: We can make judgments about that particular inference, Mr Chairman, but from my perspective I am simply saying to the Committee that as long as we face an attack as a strong possibility I think we need to have our resources and our emergency services focused on—

  Q60  Chairman: I do not think anybody would dispute that; it is not a question of emergency response, it is a question of the impact on civil liberties of having this permanent state of emergency. That is the real issue we are talking about here; not the fact we should be prepared with all the emergency services and the intelligence going on, or all the rest of it. The question is about the restrictions on public liberty, civil liberties, that come from having this sort of permanent arrangement.

  Mr Hanson: This may be controversial and the Committee may not agree with my assessment of this, but I think that most of my constituents (and I represent 60,000 people in the House of Commons, as people in this room do) will accept those limited impositions on civil liberties for the greater protection of the British public at large. I think we can have that debate and I am happy to have that debate, because the measures we are taking, and have taken, I believe, are proportionate to the level of threat and strong possibility of attack that we face—unlikely as I still believe it will be but it is a strong possibility.

  Q61  Chairman: For example, even section 44?

  Mr Hanson: As the Committee will know, I sign off every section 44 agreement that is put to me by the police throughout the United Kingdom, and over the past year we have seen a 40 per cent reduction in the applications for section 44 from police forces because I have asked the Met, particularly, to look at better definition of how they use section 44.

  Q62  Chairman: Was it not rather peculiar that Lord West got stopped under section 44 at security in the House of Lords?

  Mr Hanson: I am not able to comment on any individual who has been stopped on section 44 because that would be a breach of their civil liberties to put that publicly without charge.

  Q63  Earl of Onslow: On the actual definition of "threatening the life of the nation", does this not occur to you that that, in itself, is hyperbolic? The nation has gone through much, much worse times. I am old enough—and you probably are not—to remember the last War. The last War was a real threat; there were dirty great German tanks with broken crosses sitting on the cliffs above Calais. Of course the bombs on the London Underground are absolutely horrendous; of course the number of people killed is completely and utterly unacceptable, but if you use hyperbole like that it is like the little girl who shouts "Fire" the whole time; it loses its meaning. Yes, I completely agree with you that there is a serious threat (nobody is arguing that), but what I am saying is that there is a difference between a serious threat which will cause major, uncomfortable and disgusting upheaval, but it is not a threat to the life of the nation. This nation is far too grand, far too great and far too mature to be just knocked off its perch by one or two bombs on the Underground.

  Mr Hanson: Sadly, I am 52 years old; it is an accident of birth, unfortunately; I cannot do much about that—

  Q64  Earl of Onslow: I was an accident of birth too!

  Mr Hanson: Self-evidently we are not in the parlous state that we were when my uncle was killed in the Second World War, when my father was bombed in Liverpool in the Second World War and when those issues were threatening to the life of the nation in the sense of World War and that particular situation. I have to say, in our modern examination of that, I do believe that I have a duty, as does the Government, to protect British citizens, and the indiscriminate murder in the Underground, on Tubes and on other potential targets that are focused by the threat on a regular basis is a matter of national security which we have to undertake. I do not think anybody would argue that an attack of the nature of 9/11 on New York is not an attack on a nation state, and exactly that type of attack could happen to the United Kingdom in the future if we are maintaining an attack is a strong possibility. There are forces at large who seek to not just disrupt a city like London with an attack of the nature that we have had but seek to undertake major disruption. We have to protect against it and we have to, in my view, reflect that in terms of government practicalities.

  Q65  Chairman: I do not think anybody disputes that. The difference between us is whether all the preparations and the steps that we need to take, which we fully accept are necessary, are in the context of a public emergency threatening the life of the nation, or whether these steps are the things that any good government would do to protect its people against a terrorist threat. There is a difference between the two.

  Mr Hanson: I accept that, and I think that a good government would take steps to protect against a terrorist threat. Our assessment, at the moment, based on the international terrorism threat level provided by JTAC, is that there is a substantial threat, and a substantial threat (without repeating myself) is that a strong possibility of attack is the assessment currently. Therefore, we have to prepare for that. From my perspective, it is an emergency. If we look at recent judgments in the European Court of Strasbourg in relation to Case A, for example, that upheld the Government's view of where we are currently in relation to the threat.

  Chairman: We may come back to that later on.

  Q66  Mr Timpson: As part of this Committee's work to look at counter-terrorism policy and human rights over the last five years it has been trying to understand the precise nature and scope of the threat posed by international terrorism, and, frankly, it is really no further on in understanding that than it was five years ago. Bearing that in mind, is it acceptable in your view that the Director General of MI5 should give a public lecture about the state of MI5's understanding of Al Qaeda's capabilities and how that understanding has changed since 2001, but refuses to give evidence to this Committee?

  Mr Hanson: I think there are two separate but distinct issues there. I think it is a positive policy development for the Director of MI5 to be open, to be transparent, to be giving public lectures and to be open to scrutiny in a way which I think is the right thing to do in a modern democracy. I think, also, that it is right that he is subject to Parliamentary scrutiny. I think the difference would be as to where his Parliamentary scrutiny lies, and my perspective, and his, and Parliament itself, is that that lies with the Intelligence and Security Committee, and that is where he does provide information and is open to questioning and to scrutiny.

  Q67  Chairman: Would you not accept there is a difference here? I will put it to you this way: this Committee was very concerned to see the former Director of MI5 prepared to give a lecture to the Society of Newspaper Editors and answer their questions, in general terms, about the terrorist threat, but not ours. There are two issues here: the ISC obviously has the role of overseeing the security services in detail. Our job is to look at the human rights of the people of this country in the context of any counter-terrorism policy, and we have explored some of the issues already. To do that we do not want to pry into details of operational activities, and all that sort of thing, which is the ISC role; what we want to do is simply ask questions as part of our role, our terms of reference in this House, about the level of the threat, to inform us so we can actually form a view about some of the things we have been asking you about. You have made your assertions about the level of threat and "substantial" and "severe" and all that sort of thing. Fine. That is your view, and we have got no grounds to challenge it because we do not have any evidence one way or the other to question that. I do not want to start questioning you about why you think one thing is "severe" or not because that is not your job; you go on the basis of the advice you are given. However, I think it is perfectly appropriate for my Committee to be able to ask the same questions on the record in the House of Commons as a newspaper editor is able to ask the Director General of MI5 after a lunch or a dinner.

  Mr Hanson: I can accept the frustration that you would have with that view, Mr Chairman, and I fully understand where the Committee will be coming from. I think, again, in public session here there are points that are made with regard to the security assessment and threat which are made to the Security Committee on a regular basis where that committee meets in private and is the responsible committee of this House to look at those assessment issues. That is where the division of responsibility lies currently.

  Q68  Chairman: I would challenge that, you see, because you can be responsible to more than one committee. That is the point. The fact that you are here as a Home Office Minister shows that you take your responsibility in these issues seriously because there are two Committees that have different responsibilities in the same policy area: Home Affairs has a responsibility for counter-terrorism policy, of course, but so do we, and we approach it from a different angle. The ISC has a very clear responsibility in terms of holding security services to account. Our approach is very different to the ISC; we want to be able to satisfy the public that the position taken by the Government and the security services is proportionate and necessary in the light of the threat. That is basically the human rights test here. Unfortunately, we cannot give that assurance because we are not allowed to ask the same questions as a newspaper editor. That cannot be right.

  Mr Hanson: I have already indicated this in the broader sense. I think that the operational discussions and—

  Q69  Chairman: We are not talking about that; that is not what we are talking about.

  Mr Hanson: The nature of the discussion from the Director General of MI5 to a Committee like this in public session will be very different than the information he is able to supply to the ISC in a private session, to whom he has an accountability. I will happily, Mr Chairman, reflect on these points and, indeed, discuss them with the Director General of MI5, who directly is not accountable to me, but I will happily raise those issues with him. I think the division to date has been simply on the grounds that the ISC has been charged by this House to look at security matters, to do that in a way that does not compromise the security of the nation and to allow that scrutiny to take place in private session.

  Q70  Chairman: Look, I assure you we have no wish to compromise the security of the nation.

  Mr Hanson: I did not expect you to, Mr Chairman.

  Q71  Chairman: In fact, one of the overriding human rights obligations of the State is to protect us all from terrorist attack. That is a fundamental human right guaranteed by the European Convention. So that is not what we are about; what we are about, though, is to make sure that what is happening we can satisfy the public, so far as we can, is proportionate and necessary in the light of the threat. We cannot test government policy if we have no way of assessing what the threat is, other than "there is a threat", which is effectively what you are saying to us today.

  Mr Hanson: I am saying to you today that the JTAC assessment is that it is at level 3 "substantial". I am sure that we can supply information to you which covers why JTAC have made that assessment in detail. In relation to the Director General of MI5, I will reflect on that point; I am simply stating to you today what the traditional House of Commons view has been in relation to the responsibilities of various committees.

  Chairman: Let us move on.

  Q72  Earl of Onslow: In your article "The case for secret evidence", you say that the Government has not discarded our age-old freedoms and set up a process of secret courts operating outside our legal traditions and risking our fundamental civil liberties. How then do you explain the unanimous decision of the Grand Chamber of the European Court of Human Rights that the UK violated that right to have the lawfulness of detention decided in a proper court, and the unanimous decision of the Appellate Committee of the House of Lords that "a trial procedure can never be considered fair if a party to it is kept in ignorance of the case against him"?

  Mr Hanson: I think, Lord Onslow, that we have reflected upon that decision and, as you will know, the Home Secretary responded accordingly, and we have looked at the information that has been held by individuals. We have shared that information, where it is appropriate to do so, and in two cases we have therefore ended the particular action that we had taken against those individuals on the basis that we could not disclose that information. I think we have responded to that judgment in a fair and a practical way which has, hopefully, met the terms of the judgment at the same time as, in my view, helping to maintain the protection of British society.

  Q73  Earl of Onslow: I know, and rightly so, that the Government's first duty is to protect British subjects—no argument about that. However, British subjects also have very, very serious rights, and that is that when they are tried for anything they know the evidence against them. This is something which goes back deep, deep, deep into our history, and if we throw it overboard we go down the road to perdition. Do you accept that the Government has now lost the argument that it is not unfair to keep secret even the gist of allegations against someone?

  Mr Hanson: I think that is a fair reflection of how we have interpreted the judgment. Strasbourg, and the House of Lords judgment, did not rule out closed hearings altogether but simply said there should be a minimum level of disclosure. What we have done, which I believe is compliant with the Human Rights obligations that we have under those laws of judgment, is we have reviewed, as you will know, all of the current cases that we had in relation to that; we have disclosed to individuals the reasons why we believe we needed to take action against them and in two cases, known as AF and AE, because we did not have sufficient wish to disclose that information in terms of our strong level of evidence we have now dropped the orders and actions against those individuals. So I think we have complied with the order whilst maintaining, from our perspective, actions that we have needed to take in relation to these issues for the reasons I have outlined.

  Q74  Earl of Onslow: We have heard that on some control orders the people have vanished into the ether or the suburbs of Bradford (nobody is quite sure which). Under those circumstances, has there been a great damage to national security where people have vanished?

  Mr Hanson: Can I say at the outset that it is not the intention of government policy to allow individuals to vanish or to abscond, and I accept that that is not a positive development in relation to the way in which we have approached this issue. I am as disappointed as the Committee will be that seven individuals have absconded in two years; one has been recaptured, and six individuals have not been recaptured. The situation is that those individuals, if we knew where they were, we would try to discover them again and bring them back to our knowledge, but we do not. On the question of whether they are still a threat to society as a whole, the reason we took the initial action is because we believed they were. If we could find them we would still take action upon them. That means that we do accept that they are still a potential danger from the information that we have supplied to them.

  Q75  Chairman: Can I put this to you? I wrote to you and you have given us a letter back, as far as you can, about the costs, just the lawyers' costs, of control orders. You wrote and told me that between April 2006 and October 2009 the Home Office has spent £8,134,012.49 on legal costs. We can park the 49p.

  Mr Hanson: I always like to give accurate answers, Chairman.

  Q76  Chairman: I am very pleased with a very accurate answer. I think it is fair to assume that the costs of defending control orders and their lawyers is not going to be far different, because the costs of both sides are not usually very far apart. So that is about £16 million. Then you have got the costs of the court hearings themselves, and we know a High Court hearing is several thousand pounds a day incurred in terms of the MoJ. Let us just park that. Let us suppose, once again—and I think this is probably about right—the total cost for lawyers and the legal system is going to be in the order of £20 million over that period. What does it cost, instead of us spending £20 million on lawyers, to spend that money on policeman to actually keep proper tabs and surveillance on these individuals instead of the control order regime?

  Mr Hanson: There are judgments that we have to make, Mr Chairman, and a lot of those costs that I have indicated to you—and I have indicated to the Committee I will give a fuller breakdown in due course—

  Q77  Chairman: That is fair.

  Mr Hanson: —are costs related to some of the defence issues in relation to the legal challenges, that Lord Onslow has made reference to, to date. So they are not all in relation to the costs of the control orders themselves; there are significant costs—

  Q78  Chairman: You would not be bringing those cases if you did not have the control orders in the first place.

  Mr Hanson: We would not be defending those cases had we not been challenged about them, and I think once we have decided government policy in relation to security we need to defend that policy, and sometimes that does result in incurring legal costs that, quite frankly, I wish we had not incurred, but we have. The question for the Committee is: are those costs relevant; are those costs proportionate? Again, given the action that we have taken and the judgment that we have made in relation to the fact that we wish to prosecute where we can, we will deport where we can but there are cases where we cannot do either and, therefore, we found the need to take some action. That is the action we have determined to take.

  Q79  Chairman: Exactly. The point I am putting to you, bearing in mind that you have had a number of absconders, and bearing in mind the relatively small number of people on control orders, less than 20 as I understand it—it is about 17 now, is that right? Fifteen now—is it not better to spend £20 million on extra policemen (that is more than £1 million each) to keep these people under very close surveillance, than it is to spend it on QCs and people dressed up in horse-hair wigs? Is it not better to spend that money on more police to keep a very close watch on these people, so they cannot abscond, and keep the public safe, without having to infringe their civil liberties through the control order regime which has proved ineffective?

  Mr Hanson: I do not agree that the control order regime has proved ineffective because it has dealt with, so far, 44 individuals in total, and there are currently 15 as of 10 September on control orders now. I regret the fact that individuals have absconded and it is certainly not part of government policy to allow them to abscond. There is an argument that we should have closer surveillance and more involvement in police; we would find similar legal challenges, undoubtedly, in relation to those issues should I have pursued that view. What we are trying to say, and what I have said to you in the letter, is that the £8 million is a cost for our legal costs but the vast majority of that has been incurred in relation to the legal European battles that we have had.

  Q80  Chairman: But if you did not have control orders you would not have those battles.

  Mr Hanson: I suspect, Mr Chairman—I cannot give you chapter and verse on this—that had we had individual policemen monitoring individual citizens in their individual properties in the way in which you have described we would also face legal challenges and incur costs in that surveillance.

  Q81  Earl of Onslow: One further point on that. The control order system has been used to what we called "internal exile" which was normally used by the Tsars of all the Russias, and, as my Chairman informed me before, also by the Greek colonels. Is this a role model for a Labour Government?

  Mr Hanson: Certainly not, but as somebody who both opposed the Greek colonels and has opposed many other oppressive regimes in my time, including the ones in South Africa, I do not agree with that in any way, shape or form. I would simply say that the control order model—and let me put two matters of defence to it—when this order was up for annual renewal before the House of Commons and the House of Lords in June of this year the overwhelming majority of Members of Parliament, including the main Opposition, supported that regime in the House of Commons—

  Q82  Chairman: I think that is slightly overstating the case, David; I was there and I spoke in that debate and I heard what Dominic Grieve had to say as well. The view of the Opposition, and indeed, this Committee, was that we were not in a position to challenge the control order regime because we simply did not have the evidence and data and information that we needed to do so. It was not an overwhelming endorsement of the system; it was because we did not have the information we needed to propose an alternative system. That was the nature of that debate. It was only the Liberal Democrats, I think, who were opposing it.

  Mr Hanson: There was always an opportunity, after 18 years in the House of Commons myself, to vote against anything I did not agree with, and on the occasion of the last control order debate in both the House of Commons and the House of Lords, there were not sufficient votes against to ensure anywhere near a defeat for the proposal.

  Q83  Chairman: I can certainly accept that the Government won the vote but I certainly would not characterise the debate in the way that you did. Let us move on.

  Mr Hanson: In response to Lord Onslow, again, I would say that not only do we have Parliamentary oversight and a renewal sunset clause on control orders each year for Parliamentary scrutiny and for Parliamentary approval, we also have judicial oversight and we have Lord Carlile independently looking at these issues on a regular basis. I think that level of scrutiny does not strike me, with due respect, as being either Greek or military.

  Q84  Earl of Onslow: To go back to the internal exiles, there is a case—and I will not refer to it directly—where somebody who lives in one part of the country is being told to move to another part of the country where his control will take place. That cannot be right, can it?

  Mr Hanson: There are occasions—and again I cannot go into individual details—whereby the presence of an individual in a particular community is one of the reasons why that individual has been assessed to have a need for a control order in the first place, because the potential that individual has in a particular community is the reason why we have assessed that he is a potential danger to society in the first place. Those are judgments we have had to make, they are very difficult judgments, they are very small numbers in total—44 and currently 15—but they are judgments that we have had to make in very difficult circumstances.

  Q85  Lord Morris of Handsworth: Minister, can we turn, please, to special advocates and secret evidence? Can the Government demonstrate that it has now considered the implications of the judgment of the European Court of Human Rights in A v UK for all other contexts in which special advocates and secret evidence are used?

  Mr Hanson: I believe we have; I believe we have, Lord Morris.

  Q86  Lord Morris of Handsworth: You are confident about it?

  Mr Hanson: Yes.

  Q87  Lord Morris of Handsworth: If you are, is it possible to give a note to the Chairman just to confirm that?

  Mr Hanson: I will happily drop a note to the Chairman, Lord Morris.

  Q88  Lord Bowness: Minister, can I go to pre-charge detention? You will know that in our last report at the annual renewal of the terrorist legislation we said, as the Chairman has just referred to, we did not have information really to evaluate the necessity for renewal, and we have also said on a number of occasions that we are concerned about the current arrangements for judicial authorisation of extended pre-charge detention, principally that we think it is not compatible with the right to a judicial determination of the lawfulness of detention. Lord Carlile (if I can just skip ahead) in his Operation Pathway report homed in on, in a very detailed way, and reviewed, the way in which the procedures for extending pre-charge detention operated in practice, which confirmed many of our concerns about the adequacy of the safeguards, and suggested certain reforms. In particular, he made two recommendations: that the police and the CPS should take immediate steps to ensure that their procedures reflect the need for legal advice to the police at an early stage—expert CPS lawyers should be informed, well before arrests take place, of ongoing inquiries likely to result in arrests, and asked to advise on the state of the intelligence, information and evidence as the inquiry progresses, and, secondly, that all police officers involved in counter-terrorism policing should be trained in the law of arrest and its potential effect on detentions under the Terrorism Act. I think the Home Secretary's response to that report said that action had been taken to streamline and clarify police procedures in line with Lord Carlile's suggestions. Can you tell us what actions have been taken to ensure that the police inform and consult appropriate CPS lawyers before arrests take place? Are there some sort of protocols or memoranda in place dealing with this, and, if so, can we see them?

  Mr Hanson: Yes, certainly. I would, also, if I can, Chairman, publicly thank Lord Carlile for his examination of the Pathways report. He has made a number of recommendations and we have issued a letter to Lord Carlile which I am sure I can issue in due course to the Committee in response to those, if the Committee has not had the letter from the Home Secretary; it is in the library in the House, I have been informed, so it is available, but I will make sure, if the Committee wishes it, it can look at that, in due course.

  Q89  Chairman: We have got it.

  Mr Hanson: Okay. In relation to recommendation three, Lord Carlile did ensure that he said all police officers involved in counter-terrorism policing should be trained in the law of arrest and its potential effect on detentions under Schedule 8 of the Terrorism Act 2000, and we are certainly going to ensure that further guidance is needed on counter-terrorism that looks at investigations and gives training for police officers to ensure that they do have the knowledge and understanding of that legislation, and that is certainly an area that we are very happy to look at. In regards to his recommendation on the police and the CPS, the police and the CPS have agreed a procedure whereby all counter-terrorism units brief CPS officials in advance of arrests, unless there are exceptional circumstances, such as, in the case of Pathway, the need for quick and, in the case of Pathway, unexpected action on that particular day. The CPS is already involved pre-arrest in many terrorism cases and they are consulted by the police. The recommendation does reflect what I believe is normal practice and what I believe should be normal practice for the future. He has made a number of other recommendations which we are currently considering, but I think it is also important that we reflect upon what Lord Carlile said in relation to Pathway in particular, and I quote from his report that he says: "The police had no realistic alternative to arresting ... some of the suspects ... that the arrests were made on the basis of intelligence assessments ... the way in which the arrests were carried out was correct and ... the current law relating to the use of intercept material would not have made any difference in this particular case". Whatever recommendations he has made, which we will consider seriously, his view, I believe, and I reflect this, is that Operation Pathway, urgently undertaken though it was, did have the basis for action and was justified in relation to the evidence before the officers at the time.

  Q90  Lord Bowness: You mentioned Schedule 8 of the Terrorism Act. Will you consider amending it to make it clear that the judge who hears the application for an extension must apply an evidential test when deciding whether or not to extend the detention?

  Mr Hanson: If I may, I would like to consider that point because to-date I have not had that point looked at in detail, but I will certainly respond to the Committee in due course, if that is acceptable.

  Q91  Lord Bowness: I think it is suggested that if you have not thought about that, Minister, then maybe the PACE Code of Practice could be amended to ensure that it is explained to police why Article 5 of the ECHR is relevant to extensions of pre-charge detention and what its requirements are, and to make it clear that continued detention of terrorism suspects is likely to become unlawful if they are not told what offences they are supposed to have committed, and the reasons for their arrest.

  Ms Byrne: They are, in the course of the investigation, given some material and are questioned about what they know which has prompted the police to take action. If the police do apply to the courts to hold people for longer than the initial period then they increasingly have to tell the courts why they are applying to hold somebody for longer; they have to give more detail, they have to justify that the detention, if it continues, is for the purposes of the investigation and that they are proceeding as quickly and diligently as possible. We will certainly look at the point you have raised again.

  Q92  Lord Bowness: Are you going to have a similar detailed review of the pre-charge detention of the individuals who were arrested in relation to the Heathrow airline plot?

  Ms Byrne: I do not think we have had a retrospective one.

  Q93  Chairman: We have been promised one. That has been promised to the House on a number of occasions. Every time we have debated pre-charge detention in the House we have been told: "Yes, there will be analysis of these cases in due course".

  Mr Hanson: Again, we will certainly look into that and report back to the Committee, Mr Chairman.

  Q94  Chairman: It is a question I have raised, I think, three years running on the extension of the current powers.

  Mr Hanson: Part of the problem with ministerial life is I was in the Ministry of Justice at the time sorting out other matters, but we will look back at those issues for you and promises given by previous Ministers.

  Chairman: Thank you very much.

  Q95  Lord Dubs: Just turning to something which you may remember from your Northern Ireland days, which is about bail. Lord Carlile pointed out that bail has always been available in relation to terrorism offences in Northern Ireland, even during the Troubles. Why should it be available there but not in the rest of the UK?

  Mr Hanson: It is an interesting point. We have discussed this with the police, with ACPO, and with other agencies, and the advice that we have been given is that the level of offence for individuals and the type of offence that has been considered to date is not suitable for bail, and that was the advice given to us by operational police officers, and that is the advice we have accepted.

  Q96  Chairman: That is funny, because they told us different when we met them at Paddington Green, for example, and other offices. The point about it is that you have got two different types of terrorist offences, have you not? You have got the guys who go around planting the bombs and all the rest of it (and I do not think anybody would argue that bail should be for them), but you also have people very much on the periphery of these terrorist plots who are not themselves likely to go around planting bombs; they are people involved in, maybe, raising the money or writing the computer information for them and all the rest of it, and the reason that they are under arrest is while their computers are analysed; they have no direct knowledge about them. Is there a case for saying that people—because we have a law that says you have to shop a terrorist—who have a relation who has shopped them, for example, and they are not a terrorist threat in their own right and who are very much on the outskirts of the plot, should be entitled to bail?

  Mr Hanson: I think there could be an argument that an individual may not always be known to be on the periphery and somebody might be on the periphery but may not be. I think the judgments that we have had from the police is that in these types of offences bail should not be available because of the risk to public safety that might be involved.

  Q97  Chairman: Just because bail is available does not mean to say it is going to be granted. That is the point. At the moment, even if it turns out to be someone right on the edge of a plot—a conspirator, third cousin fourth-removed, who has heard a whisper at the mosque and did not bother to shop the individual concerned and is then rounded up in the "usual suspects" sort of way—those people themselves are not potentially dangerous but because there is no option but to keep them in pre-charge detention they are held in detention. Should there not be, at least, an availability of bail—I am not saying it should be granted—in the cases where people are very much on the outskirts of these plots; where they are not a flight risk, where they can be subjected to the sort of restrictions of a control order as a bail condition, and all the rest of it? Is there not a case for saying that bail should, at least, be available in those cases? Or are we saying: "No matter how remote you are from a particular plot, no matter how much you are just on the edge of it, you will be banged up until we have completed our investigations", which could be for up to 28 days?

  Mr Hanson: The judgment that we have made at the moment is that those who are detained under section 41 of the Terrorism Act 2000 are precisely the sort of individuals who we need to examine in detail before the 28-day period to look at those charges. The advice to us from the police is that it would not be appropriate, and that is the formal operational advice that we have had. I accept what Lord Dubs has mentioned in relation to potentially different regimes operating in Northern Ireland. We have, from the police, operational advice and, I am afraid, I do not want to be the Minister who supports the application for bail for individuals and then finds that those individuals undertake actions against the State.

  Q98  Chairman: We did not think up this idea of bail; I did not think up this idea of bail; this idea of bail came to us when we visited Paddington Green and when a senior officer said it would make a lot of sense if we could bail some of these people on the outside of the—This is the guy who is actually running Paddington Green.

  Mr Hanson: The guy who is running Paddington Green might want to make representations to ACPO, who are running the police advice to Ministers about these matters, and ACPO's advice to us is that we should not have bail. Indeed, as Catherine has just mentioned to me, the CPS advice, also, is the same.

  Q99  Chairman: Let us move on. After the 42-day issue—

  Mr Hanson: That is a good word for it.

  Q100  Chairman: I am trying to think of a neutral word! I am pleased we both agree it is an issue. The Government published a draft Bill on the 42-day pre-charge detention published by Jacqui when she was Home Secretary, following the 42-day defeat. This was the draft thing that was to have a sunset clause of up to 60 days, and all the rest of it. Is this still part of the Government's plans?

  Mr Hanson: We have a draft Bill, and it is in reserve and it is available, but we have not, as yet, determined through policies and the Home Secretary to bring that Bill forward because the debate on 28 days is, effectively, the settled will of both Houses of Parliament for the moment. We have the renewal order on 28 days, it has been renewed for a period post the General Election, and unless the circumstances change I do not envisage that situation changing.

  Q101  Chairman: Of course, we had that statement from the Secretary of State for Justice that the time had come to review counter-terrorism policy with a view to, probably, downgrading some of this, which was in a speech I think he made in May.

  Mr Hanson: I think there are two issues. We have the renewal of 28 days for a period which takes us beyond the General Election. I do not envisage the circumstances changing between now and the General Election, and that will be revisited either with the 28-day renewal order or, if circumstances change, the draft Bill being brought forward.

  Q102  Chairman: In what way would circumstances have changed that would encourage you to bring this Bill forward again to the House?

  Mr Hanson: In the event that I hope will not occur when the terrorist threat increases dramatically or when other serious offences happen, there may be, as there will be, examination of the Government's response to those issues. The Government has had a view on 42 days; the Houses of Parliament, both Houses, have expressed their strong reservations about that view. We have settled on 28 days, we have an order which is now operational for a period of time to its expiry, which will be in mid-2010, and that will be post the General Election and I think, unless there is a major spike in some public emergency issue between now and then, that will not be revisited between now and then.

  Q103  Chairman: What about going below 28 days back to 14 days, bearing in mind that 28 days has hardly ever been used?

  Mr Hanson: At the moment—and I cannot comment in any other way that I have done—28 days is the option. It has always been, as it was in the debate we had during the previous Parliamentary consideration of this matter, up to—

  Q104  Chairman: Twenty-eight days is the exception, is it not?

  Mr Hanson: As I say, it is up to 28 days. The point I am making is that in the Parliamentary debate we had in the summer the fact is that most detentions have not been 28 days. We have given an order for up to 28 days—

  Q105  Chairman: That has not been used for two-and-a-half years.

  Mr Hanson: That order is available until it is renewed next year, and the government will consider between now and then issues we have talked about already: the scale of the threat, the use of the order to date in pre-charge detention terms and the amount of hours and days that people have been held. We will re-visit that dependent on the level of the threat and the consideration at that time of the renewal next year.

  Q106  Chairman: One of the other things that we have been promised repeatedly on these renewal debates, and indeed on the 42-day debate as well, although I could not swear to that but certainly on the renewal debate, is that we were going to get a research study on the impact upon the communities most directly affected of counter-terrorism legislation, including pre-charge detention. We were told that we were going to get this by late November 2009. We are now in early December. When is it going to appear?

  Mr Hanson: I accept that, Chairman, and the report was due to be produced by the end of November, which, as I recall, was yesterday and today is the beginning of December, and I believe that we will be able, hopefully, to look at producing this report in relatively short order for the public and for the Committee.

  Q107  Chairman: Before the Christmas recess?

  Mr Hanson: I think we need to say in relatively short order, but please rest assured that the commitments that were given by the previous Home Secretary to produce a report by the end of November, whilst not being met in practice, will be met in spirit very shortly.

  Q108  Earl of Onslow: The House of Commons Reform Committee recommended that the Chair of the Intelligence and Security Committee be elected by the House of Commons rather than appointed by the Prime Minister. Any plans?

  Mr Hanson: No plans at the moment.

  Q109  Earl of Onslow: Why not?

  Mr Hanson: The position at the moment is that to date the Intelligence and Security Committee has been an appointment in the gift of the Prime Minister. That was established under the former Prime Minister, Tony Blair, and it has been continued under the current Prime Minister, my right hon friend, the Member for Dunfermline East, and I expect that will continue for the future. However post general election all issues can be examined. I am sure that my right hon friend reflects on these matters on a regular basis but I cannot see at the moment any circumstances, and that decision anyway, Lord Onslow, with due respect to myself, is likely to be above my pay grade.

  Earl of Onslow: I think we had better let it go at that. It is fairly obvious that no Executive is going to allow some power to slip through its fingers without it being prised away.

  Q110  Chairman: Can we move on, you will be pleased to hear, from terrorism policy and I just want to ask you some questions about policing and protest. Denis O'Connor published his report last week and certainly I thought it was a very good analysis of the position of how we drifted into the scenario that created the G20 protest and all the problems with that and he came forward with some very sensible ideas for looking forward. In your interim letter to us earlier on in the year one of the key things you agreed with us about was good communication between police and protesters, and that containment (kettling) and force should be used proportionately. We have actually moved on from that in Denis O'Connor's report where he talks about the "minimum" use of force rather than the "proportionate" use of force, which is again a very welcome consideration. How do you think these things can be achieved and what are you going to do to try and make sure that all police officers comply with these goals?

  Mr Hanson: I very much welcome Denis O'Connor's report and indeed I very much welcome the report from the Committee here today on these issues because I think we need to get a general consensus where the public, protesters and the police know the framework and operational boundaries of where they are operating, and there is a general understanding of what are acceptable forms of protest and how they are policed and managed. We are currently examining Denis O'Connor's report. Again I will tempt the Committee by saying that in very short order we will be producing a White Paper which will, I hope, respond to some of these issues and set a framework for discussion with a clear timetable as to when we can reach a conclusion on these issues. I hope that again very shortly that White Paper will do several things: set the broad principles of policing of protests; set the responsibilities and areas of work we believe the public, protesters and the police should operate within; and set a timetable for us to discuss with the police and others how we reach a conclusion on these issues over the next few weeks and months.

  Q111  Chairman: You promised us a response by 9 December so are we talking about that sort of order for your White Paper?

  Mr Hanson: The White Paper will be produced in very short order, Chairman. I am not at liberty through parliamentary protocol to say when but I would not expect it to be too far away.

  Q112  Chairman: Thank you very much. Are we going to be seeing a timescale for dealing with Denis O'Connor's recommendations?

  Mr Hanson: The intention, without trailing too much the contents of the White Paper that I have just told you I cannot tell you about, is the White Paper itself will indicate, I am sure, that we will wish to have discussions with senior officials of ACPO and with other interested parties, with a view to embedding the comments and suggestions of Denis O'Conner, and indeed the JCHR Committee, in guidance to police forces over a short period of time.

  Chairman: That is very helpful. There is obviously no point in me asking you any more questions about it because you will not answer them with the White Paper coming. Perhaps we can go on to a couple of questions on human trafficking to wind up.

  Q113  Lord Bowness: Do you have any plans to close the UK Human Trafficking Agency in Sheffield or relocate it within SOCA or the UK Border Agency? I should say, Minister, that some of us went there a week or so ago and were really very impressed with what they were doing. I suppose I am indicating where my question is coming from. There are 38 people there, a very small management board, and they seem to be extremely efficient and very focused on what they are doing. I think we would fear that some of that might be lost if it wound up in a division of a much larger body.

  Mr Hanson: I hope I can help the noble Lord, Lord Bowness, by saying there are no plans to close the centre in Sheffield.

  Q114  Lord Bowness: Are there any plans as of 1 April 2010 to end its current legal status, which I believe, although perhaps something of an anomaly, but because it started there, for pay and rations, is strictly speaking part of South Yorkshire Police even though the money comes from the Home Office? My understanding, and I think the understanding of others who were there, was that that situation was not being tolerated any longer by government and it had to go somewhere else.

  Mr Hanson: I think we are looking at it as a legal entity and there are technical issues around its legal status, but that will not, in my view, impact upon the location or the operations in Sheffield. It is simply the legal technicality of where that ultimately reports to.

  Q115  Lord Bowness: So there is a possibility that it could actually go to SOCA or the Border Agency and become part of that organisation?

  Mr Hanson: We are currently considering the legal nature of the Human Trafficking Centre, but I want to reassure the Committee that that will not alter its location or its operation. It is simply the legal technical view of the legal entity which we have not yet finalised in terms of decisions. I am sorry if through my colleague who is dealing with this matter, Alan Campbell, the Member for Tynemouth and Parliamentary Under Secretary of State, that the impression has been given of the potential closure of the centre. That is not the case.

  Q116  Lord Bowness: Perhaps I should not have used the word "relocated". I do not think we were under the impression that it was going to be moved out of the building. It is a question of where it rests as an entity.

  Mr Hanson: I appreciate that and my colleague, the Parliamentary Under Secretary of State, is currently considering that and he has not reached a final decision. He is looking at the legal entity, which I believe is of a technical nature, but there are no plans in relation to relocation in the broader sense, so I hope that be will resolved through discussion and negotiation when the Minister has made a final decision on it.

  Q117  Lord Bowness: Is it becoming a separate entity, I suppose to be strictly accurate, an option?

  Mr Hanson: All options are options and the Minister, my colleague, is looking at these options now and has not made a final decision but is aware of the concerns that have been expressed. The objective is to look at the legal entity, which I think is a technical matter, and to ensure that we build on the success of the Human Trafficking Centre, not to put its future into doubt.

  Q118  Chairman: Before we move on, this is very, very important to us, David, and in particular that if any decision is taken it should not be the UK Border Agency because when we started looking at trafficking, which was pretty well at the start of this Parliament or maybe a year in, one of the real issues that was coming up was the way that trafficking was seen as a migration issue rather than a criminal justice issue. One of the problems we had all the way along was getting the Home Office to accept the Convention and all the rest of it because of the alleged pull factor which was coming out of the immigration department of the Home Office, whatever it happened to be called at the particular time. We think it would send entirely the wrong message, even if it made no difference to the operation, if somehow it was reporting to the UK Border Agency. SOCA would be a better home for pay and rations reporting arrangements but the UK Border Agency would be entirely the wrong place to put it, in our view.

  Mr Hanson: Can I say again that no decision has been taken. My colleague is looking at this as part of his ministerial duties.

  Q119  Chairman: I am just putting in a plea.

  Mr Hanson: I note the view of the Committee and of Lord Bowness in relation to those matters and I will reflect those back to the Parliamentary Under Secretary who is currently considering these issues.

  Earl of Onslow: It just seems that if it is really working well—and I was not one of those who went there—it seems an awful pity to mess about with it, even legally. Is it not possible to say that technically, yes, it would be better in house A as opposed to house B and leave it where it is because it is working so well? Do not mess it about if it is working well and it is working well under its present umbrella.

  Chairman: It is the old saying "if it ain't broke don't fix it".

  Q120  Earl of Onslow: It was rather a pompous way of saying exactly that.

  Mr Hanson: Those are the very issues that we are currently considering. I cannot prejudge the outcome of those but I do understand the views of the Committee and the very strong affinity with the work that is being undertaken in Sheffield currently.

  Q121  Lord Bowness: In a trafficking sense can I touch on the Metropolitan Police Unit which I guess you might say is a matter for the Metropolitan Police Authority, Minister.

  Mr Hanson: I fear I may say that.

  Q122  Lord Bowness: I fear you may but what is not a matter for the Metropolitan Police Authority is where the money comes from and in 2007 it was fully funded by the Home Office. It was cut by 50 per cent for this current year and now the money will disappear altogether for 2010. This is the trouble with all government initiatives under governments of all colours: they encourage local government or things similar to local government to embark on initiatives that are funded; it all gets started and then suddenly the funding trails off. Is it not really unfortunate and ought it not to be reconsidered whether the funding should be reinstated or maintained at the very least at its current level?

  Mr Hanson: Again, I fear I may say that these are operational decisions for the Metropolitan Police Authority and for the Commissioner of Police in London. We give a grant to them to undertake policing activities. We have funded initially the Human Trafficking Centre but it was on the understanding that that funding would end and on the ending of that funding they have to make operational priorities as to where they want to put those resources. That is a decision that the Mayor and the Commissioner and the Authority have taken and it is not for me to interfere in that, simply to say that only last Thursday we have given an overall increase of 2.7% for next year, and in an inflationary time of lower than 2.7% that gives some flexibility for them to look at using some of that resource in other ways if they so wish.

  Q123  Chairman: You have two different things here, David. On the one hand, if I go and see my borough commander, as I regularly do, he tells me the pressure is on the OTU budget for his particular borough and you get the trade-off between the safer neighbourhood team and the Human Trafficking Centre. It is not a very healthy position to be in. I think there is one particular point that needs to be borne in mind here and that is the 2012 Olympics. We know from around the world that when you have these enormous sporting occasions, whether it be the Olympics or the World Cup or whatever it is, there is a tendency for a greater degree of prostitution to arrive and a lot of the prostitutes may well end up being trafficked. It is going to be a growing problem in the run-up to the 2012 Olympics. Is there any prospect of looking at this again in the context of the 2012 Olympics to ensure that the Met are able to continue this without impinging on the day-to-day policing of the city in my constituency or indeed Virendra's or any other London MP's constituency?

  Mr Hanson: Again, the job of the Policing Minister is to set some overall priorities and to set overall budgets, but the bottom line is local policing is about local policing, and the funding of that Centre and the priorities that the Metropolitan Policy put to that Centre are, quite rightly, matters for the Metropolitan Police, the Commissioner and the Mayor. It is the same in my own constituency and others. I would not expect to be operationally deciding budget allocations for chief constables across the board. Those decisions have been taken and it is not for me to criticise them or support them; it is simply for me to say that is their priority at a local level and that is what we are trying to do in terms of our approach to policing.

  Q124  Chairman: The Metropolitan Police area is the biggest place for these problems, although I fully accept it is all over the country, and really where the wealth is driven from and, with the 2012 Olympics coming, do you not agree it would be a bit of a shame, having got the specialist unit set up in the Met, if we did not have a unit with this experience and an intelligence centre that had developed over the years on how to deal with this particular problem simply because it is a choice between whether we have a safer neighbourhood team in my constituency or whether we have this in Scotland Yard?

  Mr Hanson: It is a choice between how we use the resources generally. It is not a choice necessarily between a safer neighbourhood team and a human trafficking unit in a particular police area. It can be the choice between how we use those resources, and I know the Met for example are looking now in certain areas at single policing patrols to reduce costs, they are looking at back room staff, they are looking at better procurement, and the White Paper indeed itself will look at equipment procurement that will save resources. That resource can be used according to operational needs. It is not my job, with due respect to the Committee as a whole, to be the Metropolitan Police Commissioner or the Metropolitan Policy Authority. They have made those choices as to how to allocate those resources based on their operational needs at a local level and I have to respect that.

  Q125  Chairman: I think we have finished our questioning. Is there anything else you would like to add to anything you have had to say to us?

  Mr Hanson: No, Chairman. What I will do is I will reflect upon the points that we have mentioned today and if there are issues that I have said I will write to you on, I will write to you within a week on those issues. If there are other points that I think I should elucidate upon I shall try to do so accordingly. Thank you for your interest in these matters.

  Chairman: Thank you for answering our questions. The Committee is adjourned.

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Prepared 25 March 2010