Examination of Witness (Questions 1-19)
LORD CARLILE
OF BERRIEW
QC
TUESDAY 11 MARCH 2003
Chairman
1. Lord Carlile, welcome, and apologies for
keeping you waiting. We are going to question you first about
your Report on the Terrorism Act 2000, and secondly on Part IV
of the 2001 Act. I think the second of those two jobs you have
is one that was given at our recommendation when we did our own
report into this; so I am sorry if we have burdened you. Mr Winnick
is going to start the ball rolling.
David Winnick
2. It is nice to see you back in another role,
Lord Carlile. I wonder if I could ask you if you could explain,
briefly, of course, your role. You are described as the reviewer
of terrorism legislation; what precisely does that mean?
(Lord Carlile of Berriew) I think that is a sort of
self-description I have given myself, in a way, simply because
there is more than one Act that I now have to review. Under the
Terrorism Act 2000, my job is to act as an independent person
who reviews the working of the Act, the operation of the Act,
which is a pretty broad role. I have had predecessors, very good
predecessors, and I have used their reports as precedents, and,
of course, over the years I have read their reports, and occasionally
even debated them, I think, on occasions when some of you were
present and took part yourselves. What I do is, I go through systematically
the statutory provisions in the Terrorism Act 2000, I travel to
different places, I talk to different people, as set out in the
Annexes to my report, and I see if those sections are working,
whether they are needed, whether they can be changed, and recommend
accordingly.
3. Is it any part of your role to inquire why
these people have been detained; in other words, challenging the
fact they are being detained?
(Lord Carlile of Berriew) If we are talking about
detention then basically we are looking at the Anti-terrorism,
Crime and Security Act 2001, rather than the Terrorism Act 2000.
The answer to the question directly is yes, and I thought you
might develop this theme in the second part of your questioning.
But to give a very brief answer to it, I have decided that the
way to deal with that question is to replicate precisely what
the Home Secretary does, and, as it were, put myself in his position
and decide whether I would have made the order that he had made,
had I been the Home Secretary.
4. You say in your report, Lord Carlile, which
has been circulated to us, that you spend 40 days on your work,
that is full time, those 40 days are devoted entirely to your
job of reviewing the Act?
(Lord Carlile of Berriew) They are forty day equivalents,
spread over probably about 70 days, some of them are full days,
some of them are full weeks. I regret to say that issues relating
to terrorism probably are one of the largest growth industries
in town, as you will have discovered already, and as the plethora
of committees and reviews demonstrates. I have warned Home Office
officials recently that I suspect I may need more than 40 days,
maybe as many as 50 days, to do it during the course of this year,
or this year and next year, and that is accepted, nobody has tried
to place on me any constraints. It involves a degree of travelling,
mostly around the country to ports and airports, and so on, and
obviously that takes time, but also I have to read a good deal,
write reports, which I do myself, do research, so it is fairly
time-consuming.
5. Yes, I can imagine. Are you satisfied that
you have sufficient powers and resources to carry out your work?
Do you have a secretariat, or anything of that kind?
(Lord Carlile of Berriew) As to powers, I am very
satisfied with my terms of reference because they are so broad.
As to resources, I have had no constraints placed on the resources
that I can ask for. I do not have a full-time secretariat; however,
there is one young and extremely able official in the relevant
department of the Home Office, and I do not want to go into details,
if I may, about that sort of thing, who gives me an enormous amount
of organisational assistance. I can turn to other officials whenever
I want to. I am not terribly keen on employing people, because
when I left the House of Commons, in 1997, I decided that was
one of the things I could happily do without, so I do most of
the work myself; and I think it is of the essence of independence
not to depend too much upon conclusions reached by others, but
I consult widely. I have been told, however, that if I wanted
to employ, for example, a research assistant, to help me with
this work, there would be no constraint upon that, but I have
not done it because, frankly, I feel that the work would simply
be done twice.
6. I think we can come to the conclusion, in
answer to my question, that you are quite satisfied that all the
help that is required has been given you, you have no complaints
about that and it does not come out in your report that you do
have. There is a different type of committee looking into the
whole Act, a separate committee of Privy Counsellors; how does
that clash, in any way, if it does clash at all, with the work
that you do?
(Lord Carlile of Berriew) I hope it does not clash
at all. Lord Newton is the chairman of that committee, and he
and I have spoken at considerable length and whenever we wish,
formally and informally, about the relationship between our two
very different processes, and I will answer that part of the question
in a moment, if I may. Also, that committee does have a highly
competent secretariat; it needs it, because it is rather like
a select or joint committee in its format, and I have maximum
co-operation with their secretariat, and that is of great benefit
to me, and I hope of some benefit to them. As to the relationship,
we are doing a different job. Under the Anti-terrorism, Crime
and Security Act, my role is to review the operation of Sections
21 to 23, which are the detention provisions.
7. Which, more or less, this Committee recommended?
(Lord Carlile of Berriew) Yes. There are wider issues,
for example, relating to the way in which the Special Immigration
Appeals Commission deals with cases, but, nevertheless, my bit
of the Act is fairly narrow. They have to look at a very, very
much wider range of issues. As you know, under the Anti-terrorism
Act, there is a huge amount of provision in relation to general
evidence in criminal cases. When the Bill came before Parliament,
it was thought it would deal with terrorism only, but it turned
out to be extremely wider than that, and, frankly, I do not envy
the Privy Counsellors committee the width of their remit. Just
to give you one example, they are looking at the whole issue of
evidence from intercepts and the way in which intercepts of different
kinds are dealt with by disclosure in criminal cases and otherwise
evidentially; that in itself is a huge issue I do not have to
deal with.
8. The select committee which you have just
been referring to, looking at the whole Act, would you be asked
to give evidence to that committee?
(Lord Carlile of Berriew) I have had one lengthy meeting
with the committee.
9. How many are on that committee?
(Lord Carlile of Berriew) I cannot answer that off
the top of my head, but there are others in the room who would
be able to tell you the answer to that.
10. Yes, but you have met them?
(Lord Carlile of Berriew) It is of select committee
size. I cannot give you a precise number. But I have met with
the committee at a very early stage in their work; as I said,
I have a lot of informal contact, and, if asked, I will simply
turn up.
11. Do you feel, Lord Carlile, there is any
case for an annual review of the entire Act, because what is happening
at the moment, as I understand it, is that the committee which
we have just been talking about, the Privy Counsellors, is a one-off;
should there be an annual review of the whole Act?
(Lord Carlile of Berriew) There is a small technical
problem here. The detention provisions are renewable, but they
are renewable periodically, which is not the same as annually,
they can be renewed for shorter periods than a year, the maximum
period being a year. I think that there is a case for a committee
like the Privy Counsellors committee to review annually the operation
of an Act which deals with such sensitive, evidential issues as
they do. However, that is just an instinct of mine. I look forward
very much to seeing their report. I think, when we have read their
report, which is due, as I understand it, at the end of this year,
then we will be able to judge better whether an annual report
on the whole Act needs to be carried out, or would be beneficial.
And, as a principle, reviewing legislation that impinges on people's
civil liberties sounds like "a good thing". One of the
things that Government might consider is not having a Privy Counsellors
committee to review the whole of the 2001 Act but having something
like my review of the Terrorism Act 2000 by an independent individual.
I am not bidding for the job, I am just making a suggestion that
it might be a good idea, because I do not want to go full time
on this kind of thing. I think that might be a good idea, and
would bolster confidence in this kind of legislation.
12. I suppose a lot depends on parliamentary
and media views and pressures whether that comes about?
(Lord Carlile of Berriew) Mr Winnick, I would not
trespass on your understanding of media perceptions, you are a
much older hand at that than I.
Mr Winnick: For this section, thank you
very much, Lord Carlile.
Chairman: Thank you. Now can we turn
back to the 2000 Act.
Mr Watson
13. Lord Carlile, you noted in your report that
there were some Special Branch officers who were equivocal about
proscription. Was there any one that strongly objected to proscription,
and, if so, why?
(Lord Carlile of Berriew) Absolutely not. When I started
doing this job, I thought I must take a blue-sky approach to all
the issues, so I went around asking some fairly fundamental questions
about proscription, Diplock courts, scheduling in and scheduling
out, what I regarded as the obvious big issues. I thought, at
that stage, when I said to police officers, "What do you
think about proscription?" they would all say, "It's
a very good thing, it enables us to put people into categories,
therefore it's easier to know who to stop at ports;" it is
less clear than that. And at the operational level, and I mean
literally standing there in, say, Liverpool Airport, as I have
done, next to a police officer, seeing people coming off a plane
from Belfast, whether someone is a member of a proscribed organisation
really is not a material factor; so they are fairly equivocal
about its operational utility. I share the view that proscription
is necessary, I think it is necessary particularly in dealing
with international terrorism. It provides especially Foreign and
Commonwealth Office officials with a rationale for carrying out
certain types of investigation and I think therefore leads to
some sound information, and even evidence, there being an important
difference between the two, as you know. So, on the whole, I think,
although the police do not get excited about proscription, as
being a really big shot in their locker, it is necessary and desirable.
Having said that, I think that it is very important that proscriptions
should be kept under review, I am aware that they are kept under
review by cross-departmental committee structure, and on a regular
basis.
14. I think you said in your report that those
reviews should be held not more than six months apart. Could you
recommend a length of time, should it be three months, four months,
for example?
(Lord Carlile of Berriew) Ideally, one should have
these reviews as often as is practicable, which might be three
months. But, looking at the current international situation, one
knows, in practice, that the same people are doing more than one
job, so at the present time I would say that six-monthly reviews
are the minimum that are satisfactory, three-monthly reviews would
be more satisfactory. Part of the reason for that is that, on
the international front, as opposed to the Northern Ireland front,
my perception is that these organisations breed sub-organisations,
change a good deal. You are dealing with people who are very,
very sophisticated in meeting what they see as the challenge of
the big states trying to suppress their political activities,
what we see perhaps as anti-terrorism action, and so there has
to be a degree of flexibility.
15. Just to move on. Why do you think the Government
is so resistant to creating a new specific offence for acts preparatory
to terrorism; did you find any strong arguments against that?
(Lord Carlile of Berriew) I am a little puzzled by
this, I have to say. Some very strong arguments have been presented
in favour of an offence preparatory to terrorism. Lord Lloyd's
report is a good ad majorem argument, I found it convincing
and I spoke to Lord Lloyd about it, and indeed I would like to
say that Lord Lloyd continues to be a very useful sounding-board
to me, if I want to use him, on these issues. Other countries
have similar legislation. A comparative study, even of European
jurisdictions, would show that such offences exist; for example,
the Germans have very different forms of legislation, it is purposive,
and therefore perhaps more flexible to deal with this. On the
other hand, if you want me to give you a counter-argument, there
is a resistance in the jurisdiction of England and Wales, at least,
to inchoate offences of various kinds such as incitement, conspiracy.
One is never encouraged to use them more than is necessary, because
they can be too easy to prove, sometimes. On balance, I would
like to see some further serious consideration given to changing
the law, because we all feel a bit reluctant to lock people up
without charging them with something and having a trial, and this
is the main problem of Sections 21 to 23.
16. My final question, and my colleague touched
on it, are you personally in favour of allowing intercept evidence
to be admissible in court?
(Lord Carlile of Berriew) Yes, in general terms; the
Americans do it all the time. We could spend an hour discussing
why, but if I can try to wrap it up into a short paragraph. Other
countries do it without difficulty. There are protections built
in the law, such as properly regulated public interest immunity,
exercised by judges on the basis of full disclosure to the judge,
which provide a significant degree of protection for the citizen.
Speaking as a practical lawyer who has had to deal with these
issues in a courtroom in detail, you can be left in very muddy
water. I think the present system of scrutiny and supervision
is unsatisfactory. A commission which is populated entirely by
retired Lords Justices, with great respect to the retired Lords
Justices, frankly, has very little public credibility at all,
and the legal profession do not regard it as very credible, because,
rightly or wrongly, and many of them are splendidly independent,
they are establishment figures, they are the most established
figures you could find; and what better way of testing evidence
than by our adversarial process, in a courtroom. Some of you may
disagree with that, but that is my view, I think it works rather
well.
Chairman
17. In a security establishment, who is in favour
of allowing intercept evidence and who is against?
(Lord Carlile of Berriew) I am not sure that anybody
is now hugely against it. You would have to ask the Security Service
yourself, but my understanding is that MI5 take a pretty relaxed
view to this now.
18. Yes, that was our understanding.
(Lord Carlile of Berriew) Certainly, the present Director,
I have not spoken to her, I spoke to her predecessor, I have not
met her yet, but the present Director of MI5, I understand, is
quite relaxed about it. The opposition is to be found in various
papers which are rather historic in nature, some of which I have
read, and it is probably the preserve of some Home Office officials,
maybe some senior Home Office officials; and sometimes, when people—and
I except you from this, Mr Mullin—of radical persuasion
become ministers, the worm turneth.
19. I paid only a brief visit to government,
so I was not infected. The police, are they in favour?
(Lord Carlile of Berriew) I do not think the police
have a problem about it at all. The police, on the whole, do as
they are told. Their concern is always to put the right training
structures in place, to ensure that defence lawyers are not able
to use legal niceties in court to defeat a good prosecution case.
There are huge anomalies in this field. If I can give you an example,
from my own experience. I defended a very senior police officer,
unsuccessfully, I have to add, some years ago, whose conversations
had been recorded by the placing of a probe in the ceiling of
his living-room; now the evidence of the product of that probe
was admissible, was admitted in court, and was the foundation
of his conviction, it included listening in to one side of every
telephone conversation, because his main telephone was in his
living-room. If that had not been a probe physically inserted
by the police but had been a wire-tap onto the public telephone
system then we could not have asked a question in court, because
it is prohibited, as to whether that had been considered, let
alone taken place. Well that is self-evidently ludicrous, is it
not.
|
