Session 2010-11
Publications on the internet

Uncorrected Transcript of Oral Evidence
To be published as HC 797-i

House of Lords

House of Commons

Minutes of Evidence

Taken Before

Joint Committee on Human Rights

Counter-Terrorism Review

Tuesday 8 February 2011

Lord Macdonald of River Glaven

Baroness Neville-Jones and Peter Hill

Evidence heard in Public Questions 1 - 70



This is an uncorrected transcript of evidence taken in public and reported to the House. The transcript has been placed on the internet on the authority of the Committee, and copies have been made available by the Vote Office for the use of Members and others.


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Members Present

Dr Hywel Francis (Chairman)

Lord Bowness

Baroness Campbell of Surbiton

Lord Dubs

Dr Julian Huppert

Lord Morris of Handsworth

Mr Virendra Sharma

Mr Richard Shepherd


Examination of Witness

Lord Macdonald of River Glaven

Q1 The Chairman: Good afternoon. Welcome to the Joint Committee on Human Rights and to this evidence session on counter-terrorism policy and human rights. For the record, could you please introduce yourself?

Lord Macdonald of River Glaven: I am Ken Macdonald. I was the independent reviewer of the counter-terrorism review.

Q2 The Chairman: Thank you. Could I begin with your alternative proposal? In your report, you recommend that it should be a precondition of any restrictions on terrorism suspects that the DPP has certified that a criminal investigation into their involvement in terrorism is justified. Could you elaborate on that and explain in more detail the purpose of the recommendation and how it would work in practice?

Lord Macdonald of River Glaven: The fundamental objection to the control order system has been that it is divorced from criminal justice and restrictions are put on people’s liberty without there having been any form of prosecution or conviction. It is appropriate to restrict people’s liberties in circumstances where crime is being investigated or where there is a pending prosecution; the bail system is the most obvious example. Bail conditions can be imposed on individuals by the police either before charge or after charge and before trial. Those conditions can be stringent. They are acceptable because a due process criminal justice episode is under way.

It seems to me that in circumstance where the Home Secretary is declaring to the High Court that she has reasonable grounds to believe that an individual is involved in terrorist activity, it would be utterly perverse if there were not to be a coterminous criminal investigation into that individual. Sometimes there is not, and I think that is a serious difficulty. If there was a continuing criminal investigation of that individual, then restrictions placed on them seem to me to become far more proportionate and more constitutional. They could then last for as long as the investigation lasted, or for two years.

I think this is a sensible proposal that would have the support of a wide swathe of opinion. It would reflect the reality of the situation that there ought to be investigations and I think it would deal with many of the constitutional objections to control orders. It would also underline the absolute primacy of prosecution. One of the central problems with control orders is that people became warehoused out of the clutches of criminal justice. In that very real sense, people who may have been involved in serious and persistent terrorist activity escaped justice. People who are involved in serious and persistent terrorist activity should be prosecuted and put in prison. To link restrictions to a criminal investigation is more likely to achieve that effect.

Q3 The Chairman: You have not mentioned the DPP. Could I ask specifically about that? What test would the DPP apply in deciding whether to certify?

Lord Macdonald of River Glaven: I think he would probably apply the same test as the Home Secretary-that there were reasonable grounds to believe that the individual in question was involved in terrorist activity. I am sure that if the DPP came to that conclusion, he would certify that there ought to be a criminal investigation into that individual. Of course, there may have been a criminal investigation in the past that had turned up no material, but that is no reason why an investigation should not continue. Indeed, it should intensify. Under the restriction regime that I am proposing, it would be assisted by the conditions that would be designed to assist the gathering of evidence rather than being likely to obstruct it, which has too often been the case in the past.

Q4 The Chairman: You seem to have been careful to avoid the phrase "reasonable belief"; you say "reasonable grounds". Could you elaborate on that?

Lord Macdonald of River Glaven: I am not drawing any distinction between those. In the past, the test was reasonable suspicion. It is said that reasonable belief is a higher hurdle to pass. I have heard lawyers in the House of Lords argue about whether it really is a higher hurdle. I think it probably is, but only marginally so.

Q5 The Chairman: When would we know when a criminal investigation has been discontinued?

Lord Macdonald of River Glaven: If the criminal investigation was discontinued, the restrictions would have to discontinue, so no doubt the police would come to the conclusion that there was no point conducting any further investigation, because they had no grounds to believe that they would turn up material. If the investigation lasted for two years, the restrictions would fall away anyway, the review’s proposal being that no restrictions should last for longer than two years. People who are subject to restrictions in this way should be under serious and intensive criminal investigation at all times. I do not think they should simply be left in the care of the security services, warehoused away from any real possibility of conviction and then simply released into the community when their control order dies. There must be some people in those categories who deserve to be in prison and they are not ending up there.

Q6 Lord Dubs: I find your arguments about police bail very persuasive. From your experience, are there any instances where control orders have been applied where there would not be sufficient evidence because of, say, the lack of intercept evidence?

Lord Macdonald of River Glaven: Control orders are applied only if prosecution is not possible at that time. That could be for a variety of reasons. It could be because there is no evidence beyond intelligence that cannot be used. It could be because there is a desire not to expose the techniques that developed that evidence. Theoretically, it could be because material was only available in an inadmissible form, for example as intercept. Certainly, if there is sufficient evidence to prosecute, a control order should not be applied, but the fact that there is not sufficient evidence to prosecute at the time a control order is applied is not a reason for ceasing a criminal investigation, in my view. It may even be a reason for intensifying it.

Q7 The Chairman: Will there be a requirement to report to the court on the progress of the investigation?

Lord Macdonald of River Glaven: There could be. This scheme, like any other, would need to be worked up in detail. That would be a good idea, particularly if one is considering the sorts of investigations that can last for many weeks and months. When people are on police bail, they are always given a return date by the police officer, by which time they must return to the police station. Similarly, if you are bailed from a court you always know when you are going back. It would be very useful and helpful to have this as a stage process, with regular reports to the court concerning the progress of the investigation so that the restrictions may be appropriately continued when they are warranted. If the investigation runs into the sand, the restrictions should end.

Q8 Dr Huppert: You have commented a bit about the relationship between police bail and what we ought to have. How comfortable are you that TPIMs would be used principally for the purposes of criminal investigation and prosecution? Would you expect any legislation coming out to say that explicitly?

Lord Macdonald of River Glaven: There is a sense in the review that could have been articulated more forcefully that TPIMs should not be seen as an end in themselves. The primacy must always be given to prosecution. It should be enshrined in the legislation that prosecution should be primary. Secondly, it should be enshrined in the legislation that any restrictions that are imposed under a TPIM do not, except in extreme circumstances, have the effect of impeding investigation.

Let me give you an example, which I highlight in my report. If you tell someone that he cannot use a mobile phone or a computer, you are immediately cutting off one of the best means of discovering evidence fit for prosecution. The use of phones and computers is a rich source of evidence. If you say to someone that they cannot speak on the phone, use a computer or talk to the people that we take to be their criminal associates, you are putting them in an evidential limbo and you are never going to build a case against them. I am instinctively hostile to any restriction being placed on someone except in extremis, where you have reliable information that if he talks to A, they are likely to go off and blow themselves up somewhere. Except in that sort of situation, I am deeply hostile to restrictions that interfere with the discovery of evidence in that way.

Criminal investigation is about designing a scheme whose result is going to be the discovery of evidence fit for prosecution. Control orders, in the way that they have been used in the past, fundamentally disrupt that process. They keep people out of prison. I can see that they have a convenience, sometimes, for the security service and others, who can develop relationships with controlees and keep tabs on them to some extent, but the security service do not have a primary interest in prosecution; their primary interest is protective. The Government has stated that its primary purpose in cases of terrorism is to find evidence against these individuals and to have them locked up. That is the right priority and I think the legislation should ensure that TPIMs must be designed to achieve that end, not to impede it.

It is going to be very important to see what restrictions are in the legislation. This is left open in the review. I pointed out in my report that there are serious omissions in the review in this area. The review does not tell us in precisely what circumstances restrictions will be applied, and what category of restrictions. It is going to be very important for Parliament to scrutinise the legislation with great care to see that some of the more negative stuff from the control order regime does not somehow slip back into the legislation. That would be highly undesirable.

Q9 The Chairman: What would your response be to the statement by Baroness Neville-Jones that TPIMs would be primarily a preventive measure and that the TPIMs regime may facilitate further investigation as well as preventing terrorist activities?

Lord Macdonald of River Glaven: Obviously they have a preventive characteristic as well. They are about preventing people whom the Government thinks are dangerous from doing anything too dangerous in the community. Of course they have that aspect. But they must be designed in such a way that, as far as possible, a primary objective is to facilitate the gathering of evidence against these people. If the suggestion is that their priority is preventive rather than gathering evidence, I would have to demur from that. I think the priority should always be to gather evidence against people who are suspected of terrorism.

Q10 Dr Huppert: You have raised an issue that suggests that the legislation is not well defined yet. Have you seen the draft legislation and do you expect to see any of it before it is published?

Lord Macdonald of River Glaven: No, I have not. My role with this is over. I was appointed as the overseer of the review and I published my report. I point out in that report that there are questions to be asked about exactly how the Government sees these restrictions. I conclude by saying that when we have further explanation from the Government of the circumstances in which the Government believes that restrictions may be properly placed on individuals, we will have a better understanding of quite how far Ministers wish to roll back the state in some of these powers. At the moment, on this aspect of control orders, it is quite unclear and opaque. As I say, the legislation will have to be scrutinised with very great care, because there is an obvious risk that when the draft legislation is published it includes some features that we perhaps thought, as a result of this process, we were not going to see. So I think a sharp eye is going to be necessary.

Q11 Baroness Campbell of Surbiton: May I explore a little bit more your concerns about TPIMs? In your view, are restrictions on the rights and freedoms of the individuals suspected of terrorism ever justifiable in the absence of an active criminal investigation, charge or conviction?

Lord Macdonald of River Glaven: I would say not in the absence of an active criminal investigation. I cannot see any justification for applying restrictions on people whom the state is not even subjecting to criminal investigation. That is why I have made my proposal. We apply restrictions to individuals who are simply subject to investigation. That is bail from the police station, although the conditions that can be applied by the police are fairly moderate. Under my proposal, the restrictions would be applied by a High Court judge and could be rather more severe than police bail conditions. But in the absence of conviction, charge, prosecution or even criminal investigation, it is very difficult to justify a state power of applying restrictions on individuals.

Q12 Baroness Campbell of Surbiton: Can I clarify? In human rights terms, is your concern that such restrictions are bound to be disproportionate in the absence of the procedural protections afforded by the criminal due process?

Lord Macdonald of River Glaven: One grapples with this question and imagines all sorts of extreme scenarios where there is information to hand that someone represents an extreme risk. I think it is difficult to imagine a situation where you would require to apply a restriction but not associate it in any way with a criminal investigation. My answer would be that although you can apply quite serious restrictions on people if they present a danger, there ought to be a criminal investigation to justify the application of those restrictions and the restrictions ought to be related to the existence of the investigation. If you take one away, it is difficult to justify the other.

Q13 Baroness Campbell of Surbiton: That is really helpful and quite clear. In the House of Lords on 26 January, you said that "some quite tough decisions will have to be made before legislation is brought before this House". What are those tough decisions facing the Government about what should be in the legislation replacing the control order regime?

Lord Macdonald of River Glaven: I think they are going to be decisions about the character of these restrictions. Let’s take the use of telephones and the internet. The closer the legislation gets to banning the use of those, the more difficult it will be to justify, for the reasons that I have already given. Let’s take bans on contact between individuals. It seems to me that in the absence of a prosecution and in the spirit of wanting to encourage the discovery of evidence, it is only in the most extreme circumstances that a restriction ought to be able to allow the state to ban A from meeting with B. In other words, you could have a list in the legislation of the sort of characteristics that Man B would have to have: a convicted terrorist; or someone who is suspected of being involved in a serious terrorist plot with the controlee. It would have to be those sorts of very specific and targeted characteristics.

As far as geographical bans are concerned, you would want to see in the legislation a scheme that really only allowed the state to ban people from going to places where it would be more difficult to keep them under surveillance-in other words, a ban designed to protect the gathering of evidence. We would not want to see the ability to ban people from whole areas, whole boroughs or whole towns. We would not want to see people subject to restrictions having to provide a list of visitors who they expected to come to their home, as they do at the moment, or a list of people they expect to meet when they leave their home, as they also do at the moment.

The trouble is that these are all shades of moderation and extremity and it is going to be terribly easy to see things at the extreme end of the scale slipping into the Bill. Parliament is going to have to make some very tough decisions about what is proportional in circumstances where people are not being prosecuted or convicted. I think the starting point should certainly be that there must at least be a criminal investigation. Even if there is a criminal investigation, Parliament will want to scrutinise very carefully what the Government says is the appropriate power to give the state to restrict people’s movements before they are being prosecuted. That is where the tough decision-making is going to be. I think there is going to be very serious discussion about whether control orders ought to be attached to criminal investigation. I am not at all sure that the Government would support that position.

Q14 Lord Bowness: When you spoke on 26 January, some of your strongest language was in connection with the requirements that people relocate. I am sure that you remember referring to that as "utterly inimical to traditional British norms". The Government is proposing to extend the life of the control order regime for another nine months in March. Do you think that it should, if possible, change those relocation requirements, in so far as they can be demanded under existing control orders?

Lord Macdonald of River Glaven: I think the Government has accepted the review’s recommendation that relocation should stop, as it has accepted that long curfews should stop. I think relocation is an unacceptable practice. I do think it is inimical to traditional British norms. I do not think we should ever have got involved in it and it is a shame that we did. I would be much happier if the Government was prepared to see it stop now, since it seems to be very happy to see it stop in nine months. Of course, it cannot allow the entire control order regime to fall now, because there would be nothing in its place for nine months, but it could certainly get rid of relocation and of lengthy curfews. That would leave it with a suite of powers greater than it will be in nine months’ time, so your point is a very good one. The Government ought to give serious consideration to getting rid of these powers now. The Government has apparently concluded that they are not necessary and disproportionate, so why not get rid of them?

Q15 Dr Huppert: I have two quick questions following on from that. First, Parliament will be required to take a view, in the run-up to March, on extending the current control orders regime. Would it be possible, in that debate and vote, to get rid of relocation? Secondly, do you think it is essential that Parliament should have sight of the l e gislation that would replace the control orders regime before being asked to extend pro tem?

Lord Macdonald of River Glaven: The Home Secretary said that draft legislation would come forward in a matter of weeks, which sounds pretty soon. I think the control order legislation will have to be renewed in March. It clearly would be a good thing if the draft legislation was published before then, but I do not know whether it will be. I am sure it will be possible to raise the issues of relocation and lengthy curfews in the debate. You have been in Parliament longer than I have, and many people in this room have been in Parliament for a lot longer. I do not honestly know what the technical process would be, but I imagine that, if it wished to, it must be possible for Parliament to get rid of relocation and long curfews before the new system comes into play. I repeat, since the Government seems to accept that they are undesirable, unnecessary and disproportionate, perhaps we ought to examine that as a serious possibility.

Q16 Lord Dubs: I wonder if I could widen the discussion on the parliamentary scrutiny of the Government’s proposals. You referred to the rebalancing of public policy in favour of liberty as an ongoing process. What do you see as the next steps in this process? Given that you are appearing before the Human Rights Committee, what part do you think this Committee might be able to play in such a process?

Lord Macdonald of River Glaven: The next stage in the process is going to be the draft legislation, which will tell us a lot about how far the Government intends to go, particularly the section on control orders. There is also a review into the Prevent strategy, which I suppose has some resonance here. A number of issues were thrown up during the review, including other areas that people said we should be looking at. One of them is something called Schedule 7 searches at airports, which is searches without suspicion. There was a variety of other issues.

It is wise for the Government always to be looking at opportunities to get this balance right. There has been a sense in which the balance has not been got right in recent years. I hope that some of this will redress that to an extent. This is something that the Government needs to keep a constant eye on. This Committee is very influential. It is not for me to tell you how to do your job, but I would have thought that one useful thing that this Committee could do would be to identify other areas where the Government might want to conduct the sort of process that it conducted in the Counter-Terrorism Review. It is quite important that this zeal does not fade as a Government becomes more experienced, and that people’s toes are kept to the fire. I am sure there are other areas in which this sort of process would be useful.

Q17 Mr Sharma: Is there a risk that extending the pre-charge detention limit to 28 days by emergency legislation in the wake of a terrorist attack would prejudice the fair trials of anyone charged in relation to those events?

Lord Macdonald of River Glaven: This is a very good and serious point, which was anxiously discussed during the review. The evidence to reduce from 28 days was overwhelming, in my view. I supported 28 days before I embarked on the review, but the evidence that I saw in the review convinced me absolutely that we did not need 28 days. I do not think we have ever needed 28 days in reality.

There was a feeling among some people that, never the less, in case there was some massive atrocity-although it is difficult to imagine one that would be massive enough to justify this-we might want to go back up to 28 days. So there were various proposals. One was that the Home Secretary should have an order-making power. That was thought to be undesirable. Another was that there should be an order-making power subject to parliamentary approval. That was thought to be undesirable. Another was that there should be the possibility of 14 days’ strict bail on top of the 14 days in custody, but that just looked like a control order and was not justified by the evidence.

The emergency legislation was the final option and it was the one that generally got agreement. I agree that there is a risk associated with it and if it ever needed to be employed, Parliament would have to conduct itself quite carefully so as not to interfere with the course of justice in any continuing case. For my own part, I cannot realistically visualise the circumstances in which this emergency legislation would come forward, because police and prosecutors are so good at assessing evidence quickly and efficiently. Broadly speaking, 14 days is enough. My usual response when people start to posit scenarios is that anything is possible; the question is what is remotely likely.

Q18 Dr Huppert: Can I have absolute clarity on how you think this could be used? Would it be that an individual has been held for 14 days and after they are held it would be extended for 28 days, or would it only work on new arrests and not retrospectively?

Lord Macdonald of River Glaven: I think it is extremely unlikely that this would apply to particular individuals. I suspect that those who supported a residual power of this sort had in mind a scenario in which there were, for example, mass casualty attacks in a number of cities and police and prosecutors were simply overwhelmed and there was no prospect of them reviewing the evidence within a 14-day period. We would be talking about something like 7 July, five or six times over simultaneously in different cities. The Committee can decide for themselves how likely they think a scenario of that sort is. People used to say to me, "What about Mumbai?" but the point about that was that these men were committing murder on CCTV and they would all be charged within a matter of hours.

Q19 Lord Morris of Handsworth: You concluded that you found the process overall to be sound. Some would argue that that is not an unqualified endorsement of the process. Were there any aspects that caused you disquiet? What did you think, for example, of the apparent briefing of the press by intelligence sources to the effect that the Deputy Prime Minister’s position on control orders would cost lives?

Lord Macdonald of River Glaven: I cannot believe that anyone from the security services gave such a briefing about the Deputy Prime Minister. If they had done, it would have been an utter disgrace and I cannot believe that it happened. I do not want to comment on the rest of the briefing.

Your first question was about the process. It was bound to be challenging, in one sense, because the review was conducted by the Office for Security and Counter-Terrorism in the Home Office, which owns a lot of this legislation. Policy-makers there have worked diligently on this legislation for a number of years. They were being asked to do something very challenging, which was to step back and take a critical view of their own work. As I have said, there were spirited discussions between a number of parties. The consultation was sound, in the sense that they spoke to people from the NGOs and the security services and everything in between. It is important that you do not just consult, but that you do so in a genuine spirit of inquiry and independence. My overall conclusion was that we got there. There was movement. There were periods when there were intense debates. That is obvious and everybody knows that. That was not just within the review, but on the outside of the review and around the fringes of it.

Overall, all the participants conducting the review showed themselves capable of taking a view that was sufficiently independent that they could move appropriately, and they did so. That is what I mean by saying that overall the process was sound.

Q20 Mr Shepherd: I just wanted to go back on the parliamentary process. It involves emergency legislation and Parliament reconvening during a recess, if necessary, to allow this to go forward. My experience in the past is that the very effort that is expended to do that already inclines public opinion towards the view that this must be so serious that those concerned are guilty. Is there not a worry about that form of bringing about an extension?

Lord Macdonald of River Glaven: I think there is. The alternative was no residual power at all, in which circumstances the Government could always bring forward emergency legislation anyway if it wanted to. The points that you make are powerful. As a criminal lawyer I certainly understand them, and one would be worried in these circumstances about the possibility of the trial being interfered with. But I repeat that I think the only circumstances in which this legislation would be brought forward are ones of such national calamity that it would not really require the bringing forward of the legislation to underline that for the public. One really would be talking about a situation that we have hardly yet begun to imagine: something like several 7/7s simultaneously. Even if we did not have emergency legislation ready and waiting, in that sort of circumstance the Government are always likely to think of bringing it forward anyway. The other difficulty, from Parliament’s point of view, is that debating things in that kind of febrile atmosphere does not always produce the best results, as we have very occasionally seen in the past.

Q21 Mr Shepherd: My question then is whether you think there is sufficient separation between the Home Office and the security and intelligence services within the Office for Security and Counter-Terrorism.

Lord Macdonald of River Glaven: That is a different sort of question. As I understand it, the Office for Security and Counter-Terrorism was set up by John Reid when he was Home Secretary, with the object of bringing some expertise in security matters within the Home Office. It has been there ever since and there are very talented people working there. Much legislation that has been brought forward has no doubt been influenced by those individuals.

Q22 Mr Shepherd: The question is really about checks and balances, isn’t it?

Lord Macdonald of River Glaven: The Home Secretary sits above this, so that she and her fellow Ministers are required to make their own balanced and independent judgments about the advice that they receive. When the Home Secretary or the Security Minister receive advice from the Office for Security and Counter-Terrorism, they clearly have to take an independent view about the validity of that advice. No doubt they do so.

It is clearly very important that officials in the Office for Security and Counter-Terrorism are similarly independent of the security and intelligence agencies and exercise similar independent and dispassionate judgment about the evidence and the policy advice that they receive from those agencies. That is obviously of critical importance, because if they do not do that, it may be that the advice that they give on to the Home Secretary then becomes overly influenced by material that they are receiving from the agencies. I am sure they are well aware of that and take steps to ensure that they are not over-influenced in that way.

Q23 Mr Shepherd: I do not wish to make a debating point, but the anxiety in a democratic society is that the Home Secretary and the Minister responsible for these matters are, by usual definition, innocents in this field and have no prior knowledge or acquaintance with the agencies concerned. We have seen this in the United States , where they are perhaps more candid about their processes than we are . If the Home Secretary is confronted with overwhelming evidence, what do they do but follow the line given? The independent element and the clash of ideas is important in the democratic principle.

Lord Macdonald of River Glaven: Yes, it certainly is. I would not for one moment describe the Home Secretary or the Security Minister as innocents. You are absolutely right-this is obviously the way our system works-that Ministers need to be robust with officials. When I was an official, Ministers were robust with me and I would expect that to be the process. If it is not, obviously the system breaks down.

Q24 Mr Shepherd: You did not give a summary of the views of the CPS, the police, the security and intelligence agencies or other government Departments in your review. Why?

Lord Macdonald of River Glaven: Was there not a summary in the review document?

Mr Shepherd: Yes, there was. I apologise for that.

Lord Macdonald of River Glaven: My report was not intended to go into that level of detail. Some of the views of the CPS, the police and others were referred to in the review document. I saw all the submissions that came from all these bodies and commented on them. Indeed, I had meetings with all these bodies and sometimes had spirited discussions with them. They were all extremely helpful and extremely happy to engage in those discussions with me.

Q25 Mr Shepherd: We have a free press-I think that is right. For instance, the Sunday Times published that MI5 boss, Jonathan Evans, slammed the Deputy Prime Minister for attempting to abolish control orders against nine suspected British terrorists. The suggestion was that the Deputy Prime Minister was putting lives at risk.

Lord Macdonald of River Glaven: I know Jonathan Evans and in my experience he does not slam people. That is journalese. In my experience he is an extremely well considered person. I have already said that I do not believe that the security services can conceivably have been the source for that sort of disgraceful material about the Deputy Prime Minister.

Q26 Lord Dubs: Can we turn to intercept evidence? The previous Government said in its review of control order cases that using intercept as evidence would not have enabled a criminal prosecution to be brought in any of the cases studied and therefore would not have made any practical difference. Do you find this surprising, in the light of your own work?

Lord Macdonald of River Glaven: First, intercept evidence in our jurisdiction has not been used as a means of evidence-gathering. You use it in a different way and it would not necessarily be surprising if, looking at all the material relating to controlees, you did not find intercept evidence that would be helpful, because it had been used for intelligence-gathering, which is an entirely different model.

If, like the Americans and everybody else except us and the Irish, you use intercept proactively and purposefully to gather evidence against individuals, experience abroad shows that you come up with evidence. It is not terribly surprising. People have to communicate to do business. I have never accepted the argument that its effect would be marginal. You simply have to raise that argument in Washington and see the reaction on people’s faces when you suggest that intercept would not be useful, or ask people in Canberra or Ottawa, or anywhere else. They simply cannot believe that people are making this argument.

Q27 Mr Shepherd: Why are we making this argument? The evidence that we had in Canada was exactly as you say.

Lord Macdonald of River Glaven: I have been through this so many times over the last few years, including in front of this Committee. There is a variety of reasons. The main objection raised by opponents is that if we started using intercept evidence in court, it would require a higher standard of handling of that material by the agencies. They would have to retain material and examine it more closely. They would have to retain exculpatory material, and so on. It would be a big burden of work on them and it would require resourcing. It is also a simple position that, from their point of view, if they can conduct intercept without all the worry of trials and judicial scrutiny, why wouldn’t they prefer to keep that system?

Q28 Mr Shepherd: Because they are having to have control orders and hold people. The balance of liberty was the answer to that, wasn’t it?

Lord Macdonald of River Glaven: Yes, it was a rhetorical question.

Q29 Dr Huppert: If we could require the intelligence and security services to be more proactive in using their role to get evidence, how hard would that be to achieve? Starting from where we are, what steps would we need to take to progress that?

Lord Macdonald of River Glaven: The review-I think it was the third or fourth review that took place while I was DPP-is not complete. The Government says it is still examining the possibility of doing this. I have seen a lot of the material that has gone into these reviews, including some of the legal opinions. If you ask a lawyer to find a problem, I can assure you that they will find a problem. I have no doubt at all that there are ways through this, to develop a system that is compliant with Strasbourg and would protect fair trials. There are plenty of very senior lawyers who are convinced of that, including Peter Goldsmith, who was Attorney-General for most of my period. I have no doubt at all that if everybody came to this issue really wanting to find a solution, we could do so.

Q30 Lord Bowness: Following on from that, you did not refer specifically in your reply to the alleged risks to national security and the operational effectiveness of intercept as intelligence. This was apparently one of the reasons in the Chilcot review that the principle should be relaxed but certain safeguards should be required to minimise the risks I have referred to. That is often put forward as an objection. Do you discount it altogether, or do you believe that the safeguards can be introduced to protect intelligence sources?

Lord Macdonald of River Glaven: Certainly. We do that already when we prosecute cases that involve informers. We do it all the time. We use material from bugs and various other probes, which are put into places using very secretive methods. We still use that material in court. We used that material in the airline plotters case and in the fertiliser bomb case. We can clearly use that sort of material and protect security service methods. I am quite sure that in Washington they have plenty of secret methods that they do not want to tell their enemies about, but they do not have any problems.

If the worst came to the worst and in a criminal trial we were, for some bizarre reason, ordered by a judge to disclose some secret to the defence, we would not have to do it. There is always the option to stop the prosecution. We do that all the time in informer cases, where judges will occasionally, no doubt for good reasons, say that if you want to continue with the case you are going to have to tell the defence who the informer is. Invariably, we would offer no evidence.

There is no risk to national security. The idea that a Director of Public Prosecutions would reveal a piece of information to the defence in defiance of the wishes of the Director General of MI5, the head of GCHQ and chief of SIS is preposterous. It would never happen.

Q31 Lord Morris of Handsworth: Picking up on the earlier point, my colleague referred to the Chilcot review. Do you agree that the preconditions that were stipulated by the Chilcot review, in particular the ongoing agency discretion over the retention, examination and transcription of intercept material, need to be revisited by the advisory group? And can you say what progress is likely?

Lord Macdonald of River Glaven: The reaction of most people when they read the preconditions was that it was going to be very difficult to meet all of them. There is certainly the possibility of some involvement by the security services in the prosecution’s use of this sort of material. There are clearly ways of developing systems to resolve these problems, whether that is done by a consultative process, or some sort of Committee is set up to govern it with people from all parties with a Minister having the final say. I was always confident that that could be achieved. The prospect of the advisory group revisiting those conditions is pretty slender, but many people who supported the use of intercept in criminal trials were pretty depressed when they saw that list.

The Chairman: Lord Macdonald, thank you very much for your helpful evidence to us today. If we feel that we wish to raise additional points, we could write to you again. Thank you very much.

Examination of Witnesses

Baroness Neville-Jones [Minister of State for Security, Home Office], and Peter Hill [Deputy Director, Pursue Policy and Strategy Unit, OSCT].

Q32 The Chairman: Welcome to the Joint Committee on Human Rights and this session dealing with the Government’s counter-terrorism policy and human rights. For the record, could you introduce yourself and your colleague, please?

Baroness Neville-Jones: I am Pauline Neville-Jones. I am the Minister of State for Security and Counter-Terrorism. This is my colleague Peter-I do not know his surname.

Peter Hill: I am Peter Hill, from OSCT.

Q33 The Chairman: Thank you for your attendance, and for coming so quickly after speaking in the Chamber. I ask my colleagues to be as brief and succinct as possible. We anticipate there possibly being a vote in the Chamber, so we need to use our time efficiently. We have just had evidence from Lord Macdonald. Could I begin by asking you about his alternative proposal? Does the Government accept Lord Macdonald’s critique that restrictions on suspects that are designed to control them often have the effect of impeding criminal investigation and therefore eventual prosecution?

Baroness Neville-Jones: If I might, I would like to explain the Government’s approach to this. There is nothing between the Government and our reviewer, who did a very helpful and thorough job, on the desirability of reaching successful prosecution. The system should, as far as possible, be designed to achieve that end. There is certainly nothing between us on that objective. I think where we have some difficulty is that our experience teaches us that there is a small proportion of people-they are in very small numbers-against whom we are not able to bring a case that is admissible in court, but where there are still grounds to believe that they are a danger to the nation and it is therefore necessary to impose some kind of restriction on their freedom of movement.

We have taken seriously the observations that were put to us by our reviewer and by others who gave evidence to the review that it is important, as far as we can, to make the measures that we take consistent with the ability to bring a prosecution. We have tried to balance that consideration. As the Committee will be aware, we have deliberately included in the title of these measures the notion that they are there to forward and enable investigation to continue, with the view to getting a prosecution under way. I hope the Committee accepts that we have gone a long way to try to meet the desirability of prosecution, while preserving the necessary protections for the public, in our view.

Q34 The Chairman: Could I press you on the Government’s reasons for not accepting Lord Macdonald’s proposal that DPP certification should be a precondition of obtaining judicial permission for restrictive measures on terrorism suspects?

Baroness Neville-Jones: It will not always be possible to get to the stage where a prosecution is under way. We take the view that it is necessary for the Government to make a judgment on what is necessary for the safety of the country. The view of the CPS and the DPP is extraordinarily important, but we think that that comes when you reach the stage of having a potential prosecution in sight.

Q35 Dr Huppert: What is the purpose of a TPIM?

Baroness Neville-Jones: The purpose of a TPIM is preventive. It is designed to secure the safety of the population of this country. It is necessary in circumstances where we are not able to bring a prosecution, which is what we would really like to do, but there is nevertheless a need to restrict the ability of a suspected terrorist to continue to operate without putting any obstacle in the way of that.

Q36 Dr Huppert: I am fascinated by your response. It places all the emphasis on protection, which was the same as the old control order regime, rather than what I thought the Home Secretary had been emphasising, which was the aim of surveillance, investigation and prosecution. There is a huge difference between those two. Do you not think that it should be aimed more at successful prosecution, as Ken Macdonald was suggesting?

Baroness Neville-Jones: We do agree. That is why there is a quite different emphasis within the regime on the importance of creating circumstances, as far as we can, in which successful investigation can continue. I am afraid that we do not live in a world where that will always be possible or successful, so we believe that you still have to have a measure that enables you to protect the public.

Q37 Dr Huppert: If it is being used protectively, it will run for two years and then you will give up with the protection without having tried to prosecute people? If you suggest that there are people for whom prosecution is never likely to happen, how are you dealing with them?

Baroness Neville-Jones: An order does not run for two years. It will run for a year and then, as in the current circumstances, it will be reviewed. All sorts of tests will be put in place before a decision is taken. As I think the Committee will be aware, some of those tests are considerably higher hurdles than was previously the case, in relation to the circumstances in which the TPIM will be imposed and the restrictions within it.

Q38 Baroness Campbell of Surbiton: I would like to explore some TPIM terminology with you and see how it is going to work in practice. Can we start off with the difference between reasonable suspicion and reasonable belief? If suspicion is not enough, can a belief be reasonable if it is based on anything less than a balance of probabilities?

Baroness Neville-Jones: The noble Lady is taking me deeply into legal territory, and I am not a lawyer. It is fair to say that reasonable belief is a higher test than simple suspicion, even if it is a reasonable suspicion. Balance of probability is a higher test again, and we felt that it was appropriate, in the circumstances of these orders-which will now have the same test as asset-freezing orders-to rest on reasonable belief.

Q39 Baroness Campbell of Surbiton: Carrying on with that, apart from the proposed differences in length, what is difference in principle between an overnight residence requirement and a curfew?

Baroness Neville-Jones: You are not the first person to ask this question. I think it lies essentially in the circumstances of the requirement. As the noble Lady will be aware, there are a number of things that we will no longer be doing. We will no longer oblige people to relocate. As a general rule, the requirement to be in a place that is agreed will be for what would be regarded as an average night, not for a longer period. There is a substantial difference between that and a curfew. There will be sufficient flexibility in the regime that, should the individual concerned wish to be in another place and is able to give a good reason and it is agreed by the police authorities, they will be able to spend the night somewhere else.

There is an attempt within the ability to know the movements of these individuals to come much nearer to what might be regarded as a normal life than was previously the case. We have listened to those who say that it should not be part of a control order to create a degree of disturbance in the family or the normal life of individuals beyond what is strictly necessary. There is an attempt here to create a regime that observes people’s normal needs to a greater extent than was previously the case, consistent with security.

Q40 Baroness Campbell of Surbiton: So you are confident that the language and the meanings of these differentiations are collectively held by everyone and that they are substantive enough for people to know the difference?

Baroness Neville-Jones: I think we do believe so. I think that is also why we have felt it necessary, because this regime will be lighter, to put in place increased surveillance so that we have some capacity to ensure that in a lighter regime, which is less constraining and which would be easier to obviate on the part of the individual, we have some ability to know when that might be the case.

Q41 Mr Sharma: Can you provide more detail on the extent of the restrictions that will be possible on association, communication and movement?

Baroness Neville-Jones: On association, I think it is probably right to say that each TPIM will be tailored to the circumstances of the individual. So, in a sense, there will be no standard case, but I can give guidance on the sort of considerations that would be in view. I think it would be fair to say that there will be less likelihood-indeed the object of the exercise will not be to put a geographical boundary on individuals; it will be more to specify where they may not go, such as to the known home of somebody with whom it was very clear that they should not be associating. It will be much more specific in the area of prohibited associations.

Secondly, when it comes to communication, hitherto as a general rule it has not been possible for someone under a control order to have access to a mobile telephone or to the internet. The regime that will now be put in place will normally mean that an individual would be allowed to have a mobile telephone with a sim card, but not one that had access to the internet. They would, on the other hand, be permitted, to have access to the internet via a computer, on the basis that the password was known. Of course, there would be restrictions. For instance, it would not be possible for them to be allowed to encrypt, but they would have rights of communication, with the agreement of the authorities, and giving the authorities the ability to follow what was happening. Those are key provisions. Have I forgotten any others that are relevant?

Q42 Lord Morris of Handsworth: I wonder whether you agree that a TPIM as an instrument is largely defensive. That raises a question in my mind. How can an intrusive restriction such as an overnight residential requirement be justified where there is no ongoing criminal investigation?

Baroness Neville-Jones: I hope I have explained the circumstances in which we believe that it is necessary to have protection for the public. It is the case, however, that within this regime there will be a much greater emphasis than has publicly been the case in previous regimes-the police will be under a duty to report regularly to the Secretary of State-on whether a prosecution looks possible. She will certainly take a view on that, assessing whether there are circumstances or things that they could do. I think there will be a continuing review of the possibilities of prosecution. The evident emphasis on prosecution is an important element in the new regime.

Q43 Lord Morris of Handsworth: Yes, but to prosecute you have to procure the evidence. Restrictions that prohibit the use of telephones and computers restrict the propensity for evidence-gathering. That is why I described it earlier as a defensive mechanism rather than anything else.

Baroness Neville-Jones: It is a protective mechanism. I do not think that the Government would disagree with you. That has to be the primary purpose. It is a preventive measure against terrorism. However, we are trying to create a situation in which the possibility of further investigation with a successful outcome will nevertheless remain on the table. We know perfectly well that there is a tension between restricting somebody’s movements and the likelihood and the subsequent ability to carry out a successful prosecution, but we will make the best efforts that we can.

Q44 Lord Morris of Handsworth: Will there be any opportunity to scrutinise the legislation introducing the replacement TPIMs regime before Parliament is asked to renew the control order regime in March?

Baroness Neville-Jones: This will come forward in legislative form. Yes, it certainly will be subject to parliamentary scrutiny.

Q45 Dr Huppert: You have just raised two quick issues for clarification. The first is on the question that we have just had, about whether there will be an opportunity to scrutinise the legislation. I believe the question was whether we will be able to look at it before we are asked to renew the control order regime in March. It would be helpful to get clarity on the answer to that.

Baroness Neville-Jones: I apologise for misunderstanding the question. The control order regime must be renewed by 10 March. I think it will not be possible to see the legislation before then, or certainly to take a view and have a proper examination. We are doing our very best to publish it as soon as possible, but it would not be realistic for me to suggest that it will be possible for Parliament to have had a thorough discussion or review of that within the period available.

Q46 Dr Huppert: I would certainly be very disappointed if we were not at least able to have a look at it before that. Can I come back to what you were saying about the aim of the whole system? What you have been saying today is very different from what is in the review, which says that the control order / TPIM system is neither a long-term nor an adequate alternative to prosecution, which remains the priority. That does not seem to quite fit with what you have just been saying in several of your answers.

Baroness Neville-Jones: If I may say so, right at the outset I made that clear. This is our point of agreement with Lord Macdonald. I was then asked a series of questions about the operation of control orders, so I think I had to explain how they would operate, but I come back to the original contention that they are a preventive measure, but coupled with the obligation of a civilised state to try to bring somebody whom they believe has infringed the law to prosecution.

Q47 Lord Dubs: Will the people who are currently under control orders continue to be subject to restrictions that would not apply to the replacement regime? In other words, for example, with they continue to be subject to internal exile, notwithstanding the strength of the views expressed by Lord Macdonald on that practice? There are other examples.

Baroness Neville-Jones: Perhaps I might make two points in relation to that. Clearly, after the new regime has come into effect there cannot be two regimes, so a view would have to be taken on the existing control orders. You asked me whether they will go on as they are. Of course, control orders are at all times subject to review and they come up for formal review at the end of a given period. One point that perhaps I need to make here is that an important part of the new regime is the so-called mitigation that has been put in place; that is to say, the increased funds that are being provided for extra surveillance because of the looser regime that there will be. That has to be put in place. The resources that the police and the security service have open to them at the moment do not stretch to this. One of the reasons why the money will have to be spent is for training individuals. I think it is fair to say that we are not in a position to transit straight away from one regime to another. I think there will have to be a transitional period while the legislation and the circumstances that would enable it to be in full effect are implemented.

Q48 Lord Dubs: Fine, but subject to that, given that there may be a lengthy period before the new regime is brought fully into effect, would you seek to ease the restrictions on those people subject to control orders wherever possible before the new regime is working fully?

Baroness Neville-Jones: I think I have to say that it will have to be a case-by-case review. They are individual cases and they are always under review. We will obviously look at individual cases during this period, but I think I cannot give you a general undertaking of that kind. We will obviously have an eye to the appropriateness of the existing regime in the light of the way in which our capabilities develop and the circumstances of individuals.

Q49 Lord Bowness: The control order regime was subject to annual review. There was a regular debate and post-legislative scrutiny on it. Do you anticipate that the replacement regime will be subject to same annual review, giving the same opportunity for debate?

Baroness Neville-Jones: No. We will put this legislation in place and it will then be in place. Individual orders, of course, will be subject to term periods.

Q50 Lord Bowness: Can I ask why you take that view? Do you not see the whole concept, whether it is the old regime or the new one, as something that is, in a sense, there to meet the particular circumstances of the time?

Baroness Neville-Jones: If the threat level in this country were to change materially, much of the legislation that we have in place would need to be scrutinised on its appropriateness for the dangers that we faced. On the whole, however, we believe that the regime we are putting in place, which makes significant changes to the previous package, including the reduction in the time that people may be detailed before charge, is a good framework that ought to be able to operate on a stable basis indefinitely. But that is always subject to taking a view on the relationship between the security of the country, the threat we face and the law we have on the books.

Q51 Dr Huppert: The Government has said that it plans to draft emergency legislation to put in place an even more stringent scheme. Will that be subject to pre-legislative scrutiny in the same way that the pre-charge detention emergency legislation will be?

Baroness Neville-Jones: The Government has said that it will discuss that legislative proposal with the Opposition.

Q52 Dr Huppert: So there is no commitment to letting Parliament scrutinise such emergency legislation in advance?

Baroness Neville-Jones: No.

Dr Huppert: Bizarre.

Q53 The Chairman: Why not?

Baroness Neville-Jones: In the case of the situation that we have with the pre-charge detention, we have legislation on the statute book that, if we needed to, we could bring into operation before the new regime comes in. There is not a provision of that kind in relation to control orders.

Q54 Dr Huppert: Is that not an excellent reason why there should be scrutiny? If this is something completely different from anything that Parliament has looked at, it would be appropriate to look at it when we have time to do so rather than in the middle of some putative crisis that may come up.

Baroness Neville-Jones: It is a complex area, but there would need to be time with the Opposition to think about the terms of the legislation. Our commitment at this stage is to discuss it with them.

Q55 Dr Huppert: Taking time to write the legislation is one thing, but surely once it has been written, if you do not take it through pre-legislative scrutiny you are saying that bodies such as this would never, realistically, have an opportunity to look at it. Surely , when you have it written, the right thing to do is to make it public and have it scrutinised properly.

Baroness Neville-Jones: I would say two things. The Government’s commitment so far is to discuss this legislation with the Opposition, but I hear what the Committee is saying.

Q56 Lord Dubs: You are moving somewhat. I appreciate that maybe you have not made the decision yet. You will appreciate that draft emergency legislation always has difficulties for Parliament. We have to move very quickly when there is an emergency. Surely, giving not just the leaders of the opposition parties a chance to be involved, but giving Parliament as a whole a chance to have a look at this would ease the passage of draft emergency legislation. It would make it much better and more acceptable. Could I urge you to think again about that?

Baroness Neville-Jones: I will take the Committee’s point away.

Q57 Baroness Campbell of Surbiton: When will the draft emergency legislation be published?

Baroness Neville-Jones: The legislation on pre-charge detention will come at the same time as the Protection of Freedoms Bill. I would like the experts to explain this, because there is a complex relationship between the existing regime, which has to be repealed, and the new one that has to be put in place. Perhaps I could ask Peter Hill to explain that. Shortly, is the answer to your question.

Peter Hill: The plan is to publish the pre-charge emergency Bills at the same time as the Protection of Freedoms Bill, which will be very soon. There is a legal complication, which I will not go into, which means that you require one form of drafting while the existing legislation remains on the statute book and then you will require a different form of drafting when that is repealed through the Protection of Freedoms Bill. So technically it will look different but it will have the same purpose, which is to enable the maximum period of pre-charge detention to go from 14 to 28 days, subject to approval by Parliament. That would be the content of the legislation.

Q58 Baroness Campbell of Surbiton: And what pre-legislative scrutiny will it be subject to?

Baroness Neville-Jones: There will be pre-legislative scrutiny.

Q59 Baroness Campbell of Surbiton: Full pre-legislative scrutiny?

Baroness Neville-Jones: Yes.

Q60 Lord Dubs: May I raise the issue of possibly prejudicing future trials with emergency legislation? If the emergency Bill is introduced after an investigation has started into particular terrorist attacks, how will it be possible to avoid jeopardising the fairness of any trial while the Bill is being debated in Parliament and details emerge about what happened?

Baroness Neville-Jones: I entirely accept the fairness of the question. This is something that we thought about long and hard. There is not an ideal circumstance for this. We did not want to have legislation on the statute book. However, we felt that there could be circumstances in which a longer period for investigation was necessary before charging took place. Of the possible ways forward, the most consistent with the ability of Parliament to take a view on the appropriateness of an extended period of detention was by giving both Houses the opportunity to look at the legislation, should the Government think its introduction necessary.

When it comes to the process and the procedures under which the legislation would be examined on the Floor of the House, I think it is right to say that there are sub judice rules already in the House. You might argue that strictly speaking this is not a sub judice matter, but it is certainly a very judicial one in which rights, as you correctly say, could certainly be prejudiced. It would therefore be very right for Members of the House to be extremely careful in their examination not to prejudice a possible trial. The Government’s belief is that both Houses are capable of doing that and, at the same time, taking a valid decision.

Lord Dubs: It seems to me that that is an additional reason for having draft legislation before Parliament, but we have dealt with that.

Q61 Lord Morris of Handsworth: Being mindful of the need for procedural safeguards to ensure compatibility with the right to liberty, can I ask whether the draft emergency Bill will include any amendments to Schedule 8 to the Terrorism Act 2000 to ensure that the procedural protections for suspects detained for more than 14 days are compatible with the right to liberty under Article 5 of the convention?

Baroness Neville-Jones: I think we have judgments in our favour that indicate that Schedule 8 is consistent, compatible and compliant with ECHR.

Q62 Dr Huppert: Last week in another meeting we discussed the use of this power retrospectively on people who have already been picked up. To clarify for this Committee, you are suggesting that Parliament would be asked to introduce 28-day detention either for people where the 14-day period has not yet started or for people who are part-way through the 14 days. Is that correct?

Baroness Neville-Jones: We have not specified which of those two cases it might be. I think it could be either.

Q63 Dr Huppert: So somebody could be part-way through? Thank you. If the regime is brought in, the current extension to 28 days requires an annual vote to continue it. Would similar safeguards be in place for this emergency legislation, or would they be shorter than that?

Baroness Neville-Jones: This would be legislation with a short termination. It would not be valid for more than three months.

Q64 Dr Huppert: Thank you. Could I move on to some other topics? The next is terrorism stop-and-search powers and Section 44 of the Terrorism Act 2000 on stop-and-search without suspicion. There have already been some changes to the PACE codes applying to this, but not yet a legislative change. Is the Government considering replacing Section 44 by using a remedial order?

Baroness Neville-Jones: The way in which we will do that is still a matter of consideration inside Government, but I think we will have a decision extremely shortly. I feel that I cannot go further than that at the moment.

Q65 Dr Huppert: We look forward to hearing it. I presume there will have to be limitations on the new powers. Will they include strict limits on the duration and geographical extent of authorisations? What safeguards will they have about rolling renewals?

Baroness Neville-Jones: A rolling renewal will not be possible. Given the nature of the legislation and the purpose for which an authorisation will be granted by the Secretary of State, which will be related to a specific event or location on the basis of a reasonable suspicion that a terrorist incident would take place-these are all high hurdles-and then within that, the capacity to conduct stop-and-search without suspicion, I think it would be fair to say that this is not the sort of situation that one would expect to be replicated on a rolling basis. So I think the legitimate expectation would be that these would be granted on specific circumstances and would not then be subject simply to renewal.

Q66 Lord Dubs: The review of control order cases came up with the conclusion that using intercept evidence would not have enabled a criminal prosecution to be brought in any of the cases studied and therefore would not have made any practical difference. Could the Government make more information available about this so that we can engage with that somewhat surprising conclusion?

Baroness Neville-Jones: I think I will have to take that question away. I hesitate to give an answer on that. Clearly, the substance involved is rather sensitive. Let me see what we are able to do. There is ongoing work, as you know, and it is obviously important not to prejudice that.

Q67 Lord Dubs: Thank you. Has the advisory group revisited the operational requirements concerning ongoing agency discretion over the retention, examination and transcription of intercept material, as recommended by the previous Committee?

Baroness Neville-Jones: I think it is fair to say-I will perhaps pass this to the expert at my side-that the Committee is still doing some work on those two aspects, but it has also been asked, as the Secretary of State made clear in her recent Written Ministerial Statement, to look at not so much our ability to amend the administrative procedures, but the whole question of the legal framework within which they operate to see if we can find a way of making the intercept more readily available within a legal proceeding. The difficulties remain considerable, but we are trying very hard. We agree with those who think it would be highly desirable to make intercept available in such trials. Perhaps I could pass this to Peter.

Peter Hill: There are two limbs to the work that the ad hoc group of Privy Counsellors has been asked to take forward in the Written Ministerial Statement of two weeks ago. The first is to complete some work looking at whether the legal and operational requirements could be met to introduce a system for using intercept as evidence. The work to date has shown that it was not possible to reconcile the legal with the operational requirements. The first limb is to complete that set of work.

The second is to ask the bigger question, which is, were you to put the operational requirement to one side, what would be the implications, costs and benefits of pursuing what would have to be a legally viable regime that had some impact on the operational requirements? It is the sort of bigger question that your predecessors in the Committee were asking.

Baroness Neville-Jones: I think it is fair to say that it is a response to the points that were being made to us, but looking at it from the other way round.

Q68 The Chairman: Could I finally ask a question about process? The Government’s summary of responses to the consultation does not include even a summary of the views of the CPS, the police, the security and intelligence agencies or other government Departments. Do you think this is justifiable?

Baroness Neville-Jones: It certainly is the case that in a way, we wanted to produce a manageable document. It might help the Committee if we were to see if we could produce some kind of summary, because we certainly have the evidence on record. I will see what I can do to help.

Q69 The Chairman: Thank you. Could I put that into a formal request that we would very much appreciate that?

Baroness Neville-Jones: The witnesses themselves may have some views on the extent to which they would wish all their evidence and all the points they made to be made public. We would need to take account of that, but we will certainly consult and I hope we will come back to you with a material result.

Q70 The Chairman: Thank you. Could I also ask you, as the Minister, for an undertaking that the Government will formally request that the JCHR should scrutinise all emergency draft legislation in this area?

Baroness Neville-Jones: I think it is not in my gift, on the whole, to be able to give you that; I think it is a matter for negotiation between the parliamentary channels. I note what you say and I will pass that back.

The Chairman: Thank you very much for your evidence today. We greatly appreciate you coming before us. There are a number of other questions that we wish to raise, but we will do so in the form of a letter to you. Thank you.