Examination of Witness (Questions 60-79)
LORD CARLILE
OF BERRIEW
QC
TUESDAY 11 MARCH 2003
60. Thank you. On the specifics of your concerns
relating to Section 21, one concern is that, because there is
a time limit on appealing against certification, certification
is the process by which the Home Secretary, as it were, points
the finger and says, "You are an international terrorist,"
there is a time limit on appealing against it, you identified
the problem that, in some cases, if you have not found the person
who has been certified, the time limit for appeal might have run
out before you have actually got them. What is your recommended
solution to this?
(Lord Carlile of Berriew) I think it is in the report,
and it is fairly technical, but, basically, I have recommended
that the legislation should be altered to enable an appeal to
take place within the time limit after the certificated person
has been informed of the certificate. Some people may go on the
run, and one has very little sympathy for them, but there may
be cases where people cannot be served, for example, because they
have left the country for a time, for family reasons, and when
they return the appeal period has run out, or simply it may not
be known where they are and they are not found until the appeal
time limit has run out.
61. So you would just set the clock ticking
from the moment at which they are detained? What the Government
has done is reissued the certificate, in this one case; but you
would rather see it amended in that way?
(Lord Carlile of Berriew) I would rather see the legislation
amended, because I think it is such a simple amendment, it is
technical but it is very, very simple, and if you can amend legislation
to make it more fair by an amendment which has the exquisite advantage
of simplicity then why not do it.
62. The next issue is appeals from abroad. You
said in your report, and it seems entirely reasonable, that you
must allow people, if someone is detained and then agrees to go
abroad, because if they agree to go to another country then they
can be released, your point was, which sounds entirely reasonable,
they should be allowed to appeal from abroad because a stain is
hovering over their name, they have been designated as an international
terrorist?
(Lord Carlile of Berriew) Yes. What greater stigma
could there be than being designated as a suspected international
terrorist, and the appeal does not guarantee they are going to
win. There is an old adage in the law which is put in three words,
most appellants lose.
63. I hope you tell all your clients that?
(Lord Carlile of Berriew) One should tell one's clients
that, being realistic. But people do win appeals, and if that
stigma can be removed they should retain the opportunity to remove
it.
64. Have your concerns been satisfied by the
fact that SIAC has said that appeals can be continued from abroad,
or would you like to see a specific amendment here as well?
(Lord Carlile of Berriew) I am content to see a de
facto solution to that problem. Ideally, I would rather see
it in the legislation, but there are all the problems of getting
parliamentary time for legislation.
65. Except that this has to be renewed, this
bit of the Act has to be discussed, we debated it the other day
in the chamber?
(Lord Carlile of Berriew) But, the form of the debate,
it is an affirmative resolution procedure, and that is not amendable,
you see, is it; so that has always been a problem, even with the
affirmative resolution procedure. You cannot amend the legislation
you are affirming, or not affirming, so you are still lumbered
with the problem about persuading the Government's business managers.
66. Until 2006, when we get a proper crack at
it?
(Lord Carlile of Berriew) Yes.
67. The last point from out of your report is
the question about detainees and the conditions in which they
were held. You said in your report you were concerned that, quite
rightly, these people have not been convicted of anything, they
have been certified as international terrorists but because they
have not been convicted they should be treated in a similar way
to remand prisoners. Can you just make clear for the Committee
that you found that that was not the case?
(Lord Carlile of Berriew) If I can go back just half
a stage. I do not think I have quite said they should be treated
in the same way as remand prisoners. I think I have said that
they should be treated in a particular or singular way, and certainly
that is what I mean. I do not mean they should be treated like
someone who is remanded on a burglary charge.
68. Actually, what I meant was, sorry, not treated
as someone who has been convicted, so, in a separate category?
(Lord Carlile of Berriew) They should be put in a
separate box, in my view, because they are not charged. Now the
analogy that I would draw is the way in which prisoners, by the
way, who were convicted, were kept in the H blocks, in the Maze.
Years ago I visited the Maze, and I was able to see the conditions
in the Maze, in the H blocks, and what happened in the Maze was
that there was huge perimeter security, there were prisons within
prisons, but once you got into the H block the prisoners in the
H blocks basically were self-governing, there were prison officers
there but certainly not so as to manage every detail of the day,
the cell doors were open and they were able to run their own social
arrangements within the H block; that was an exception to the
way in which most convicted people are treated in the United Kingdom.
Chairman
69. The same principle applies in this building,
I believe?
(Lord Carlile of Berriew) Something like that, yes.
I suppose this building is an H block, yes, in a way. If they
are not charged then we have to give them some kind of different
standard. Now what is happening, to answer the other part of your
question, is that, in two prisons, Belmarsh, which in my view
is a very bad example of a modern prison, it is bad architecturally,
it is not, in my view, a very satisfactory place at all. Woodhill
is much better architecturally, much more light, a much pleasanter,
better atmosphere. They are kept in those two prisons, but they
are kept as if they were convicted murderers and armed-robbers.
Indeed, when I was at Belmarsh, I insisted on seeing some of these
men, they were all men, in their cells. I arrived at two cells
doors and there was a big notice on the doors, saying "convicted".
I said to the governor grade who was with me, "They're not
convicted," and those notices were taken down in my presence,
I do not know if they were put up after I had left but certainly
they were taken down in my presence. Now I do not blame the Prison
Service for that, not for one moment, because actually I think
there is limited information given to the Prison Service about
the people they are detaining, and limited understanding in the
Prison Service about these issues, or, at least, there was. I
have spoken to Mr Narey, who was at the time the Director of the
Prison Service, and I found I was pushing at an open door. Mr
Blunkett has now said, in the Commons debate on the renewal, that
the Government is going to do something about the detention conditions.
I hope that the Government will find a block of some kind, somewhere,
with very good perimeter security, in which, using my H block
analogy, those who wish to go to that block who are uncharged
will be able to function more freely within the block in which
they are detained. It is also very important, by the way, that
we should meet the mostly legitimate complaints, I mean mostly
legitimate at some stage, which have been made by the private
lawyers, Gareth Peirce, from Birnberg Peirce, and Tyndallwoods,
who represent the detainees, so that they have fully satisfactory
access to them. I do believe the Prison Service have been very
good about that.
Mr Cameron
70. And you will return to it in your next report.
Martin Narey has said substantial and significant improvements
have been made to the detainees' prison regime, no detainees are
currently held in the high secure unit at Belmarsh, they spend
around seven hours a day out of their cells; but you will report,
very clearly, on the progress against your goal, which is, as
you have set out, they should be held in a separate secure environment
with greater internal freedom of association and activity?
(Lord Carlile of Berriew) You see, locking someone
in their cell for seventeen hours a day, when they have not been
charged with any criminal offence, is a punishment, and these
people have not been sentenced, so, as a straightforward, logical
deduction, they are not to be punished, they are to be detained.
On the other hand, it has to be recognised that we are applying
standards in this country which are a good deal better than in
some countries around the world, and, as I understand it, certainly
better than the standards being applied in Guantanamo Bay, where
there are, I believe, eight British subjects detained.
Mr Cameron: Thank you very much.
David Winnick
71. You made mention, Lord Carlile, that during
your review you spoke to seven of the eight. First of all, why
not the eight, one did not wish to speak to you?
(Lord Carlile of Berriew) He did not wish to speak
to me. I arranged to speak to them, I telephoned Gareth Peirce,
who was the solicitor for most of them, and obtained her permission
to speak to them privately. Seven of them agreed to speak to me,
including one who was plainly very, very ill, who was moved I
believe to a secure psychiatric hospital; the eighth just did
not want to talk to me.
72. That is the person's right. I just wanted
to know. But when you spoke to the seven, I know it was a private
conversation, and obviously what is private must remain private,
but would it be right to come to the conclusion that they were
protesting at being held and felt it was unjust?
(Lord Carlile of Berriew) Yes.
73. All seven of them?
(Lord Carlile of Berriew) No. There was one who made
it absolutely plain to me that if being detained was part of the
consequences of what he was doing in life then so be it.
74. That is very interesting indeed. If any
of those you spoke to said that they would like you to speak to
their representative, if they did make such a request, would you
consider it appropriate to speak to their legal representative?
(Lord Carlile of Berriew) If one of them asked me
to speak to their legal representative, certainly I would speak
to their legal representative, I can see nothing wrong with that.
Probably I would ask them to put in writing to me what they wanted
me to speak to their legal representative about, and then I would
consider the propriety of doing that. But, in principle, if one
of them said to me, for example, "I am not seeing my legal
representative often enough," and "I haven't seen my
wife and children for three months because of the impossible arrangements
in this prison," then certainly I would not hesitate to pass
that on. I have a lot of discretion in what I do because the terms
of reference are so wide.
75. I take it, Lord Carlile, from what you have
just said, that you were not asked?
(Lord Carlile of Berriew) No; but I was given a whole
host of complaints—and this is perhaps the best answer to
your question—about certain things connected with prison
conditions, which included, a simple example, dentistry. I raised
that with the Director of the Prison Service. Now not many prisoners
get their dentistry raised by an independent reviewer with the
Director General of the Prison Service, but I did it, because
it seemed to me to be an appropriate thing to do.
76. Would you see any analogy between people
being detained in a democracy without any charge being made against
them and what took place at the beginning of the second world
war, in 1939, or is that stretching it too far?
(Lord Carlile of Berriew) It is a very, very interesting
question, and you and I probably have been reading the same books.
But I have made it my business to read about the operation of
Regulation 18(b), and the way in which tribunals operated in relation
to Regulation 18(b) in the second world war. Obviously, there
is an analogy to be drawn. I think we are operating much better
standards than were applied in those days, despite the best efforts
of people like, for example, Birkett, who were involved in the
tribunal system and seeking to provide fair results of cases.
Certainly, I do not feel under any more pressure than any person
who is given an independent role. Somebody has to give you the
independent role, somebody offers you the job, it is always the
Government; that might apply, I suppose, some subliminal pressure
to every one of us, but, I must say, I do not feel it. I think
the real answer is, it is very important to read about those things.
There is an excellent book, the title of which is "In the
Highest Degree Odious", which is a quotation from a remark
of Sir Winston Churchill, about the detention of people without
charge. I think there are great lessons to be learned from reading
the history particularly of Regulation 18(b). It covers events
as recent as in my parents' lifetime; but I do not think there
is a direct comparison to be drawn.
77. Bringing ourselves up to date and bearing
in mind the powers of the state as taken, I see from page 12 of
your report that you do say that, on the basis of the material
seen by you, you are clear that those organisations present a
significant threat to the security of the state and its citizens,
and go on to say there are some extremely dangerous groups, with
a loose but definable membership. So there is no doubt in your
mind that there are very dangerous individuals around, who, given
the circumstances, would cause immense harm?
(Lord Carlile of Berriew) I am grateful for the opportunity,
given by your question, to make it clear that it is my view, having
carried out a replication of the Home Secretary's task in issuing
certificates, that there are individuals and groups operating
in this country who present a very great danger to the ordinary
citizens of this country. Further, it is my belief that it is
naive to think that those who are in most danger are sitting in
the Palace of Westminster, or Windsor Castle, or any local authority
building; it is my belief that the people who are in the greatest
danger are our friends, our sons and daughters, who gather in
places of large public aggregation, and that we have to be very
vigilant to protect them. What happened in Bali is the lesson,
in my view, and that is why we have to pay the price of eternal
vigilance.
78. To which, I suppose, ordinary people would
say, "Well, if there's such a danger," and they would
not, quite likely, challenge it, for reasons you have explained,
"how is it that there are only eight being held in detention?"?
(Lord Carlile of Berriew) There are 13 being held
in detention now. At the time I went to see them, there were eight.
But I have reviewed all 13 cases.
79. It seems a very small number, if the danger
is so wide, and to which most people, bearing in mind the atrocities
which have occurred outside the UK, would say, "Yes, what
you've just said is absolutely valid, there is a terrible danger"?
(Lord Carlile of Berriew) I think your question raises
a very wide range of issues. First, we are rightly reluctant to
detain people without charging them with anything, because we
are not a country which makes a habit of doing that, we have due
process; and due process is introduced into this Act in the form
of SIAC and the Special Advocates, and all that kind of thing,
but it is not quite the normal due process that we are used to.
Secondly, I think it is a fair observation that if you can get
hold of the people who are organising the danger or providing
crucial technical links in the creation of the danger, then you
can actually achieve a great deal in the removal of present or
imminent danger, and that is a legitimate view. Thirdly, I started
this job as an immense cynic about the efficacy of the security
services. I am far less cynical about them now, because I have
seen quite a lot of evidence. I think that, on the whole, we have
a very good Security Service in this country, which does very
little on the basis of guesswork. It is difficult to gather evidence
in the court sense of evidence, evidence you can present in public,
but there is a great deal of reliable information that is being
gleaned, and they are doing it very well. However, it is still
quite a new situation. Until September 11, although the security
services were very concerned about international terrorism, the
scale of it was quite different; now it has become a much more
intensive and greater scale. And I think that the gathering of
information, the process, limits the number of people who can
be brought within the certification procedure in any event, that
is why I say that I think there is an ever-present danger. Now,
having said it, I do not promote doom and gloom, I am not suggesting
that every time someone goes to the New Den they are in danger
of a bomb going off there, because it is certainly not the case,
but I think that people have to be vigilant about what there is
about them. I believe that every citizen in this country is an
anti-terrorist officer, in a sense; if they see a stray bag they
should report it, if they see someone behaving oddly and there
is the remotest prospect of it being part of this danger, they
should report it. And by a wide range of co-operation we will
avoid a concentration camp mentality, which most certainly we
do not want to have, even on an issue as important as this. I
hope that answers your question.
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