TUESDAY 11 MARCH 2003

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Members present:

Mr Chris Mullin, in the Chair
Mr David Cameron
Mrs Janet Dean
Bob Russell
Mr Tom Watson
David Winnick

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LORD CARLILE OF BERRIEW QC, a Member of the House of Lords, examined.

Chairman: 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 with something. Mr Winnick is going to start the ball rolling.

David Winnick

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, indeed, as you are, not just 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.

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.

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.

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.

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.

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 in disclosure in criminal cases and otherwise evidentially; that in itself is a huge issue I do not have to deal with.

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.

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.

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.

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, and 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.

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

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 proscription should be kept under review, I am aware that it is kept under review by cross-departmental committee structure, and on a regular basis.

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.

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, you know, 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 whole problem of Sections 21 to 23.

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

In a security establishment, who is in favour of allowing intercept evidence and who is against, would you gather?

(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.

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.

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.

It is a mystery as to where this opposition comes from, but obviously there is considerable opposition about somewhere?

(Lord Carlile of Berriew) I think the door is fairly open now, and if this Committee were to express a view on it, I suspect that would be very influential.

Thank you. Sticking with arrest and detention, for the moment, when someone is arrested under a Terrorism Act nowadays, is it automatic that any interviews with them are recorded?

(Lord Carlile of Berriew) Yes, it is. One cannot exclude the unguarded comments that take place in police cars and on the way to police stations, and they have to be verified in the usual way, under the Police and Criminal Evidence Act codes. But I have been to look at this situation in the London area, in Scotland and in Northern Ireland, and, as a rule, and it is an almost invariable rule, the suspect is taken to, respectively, Paddington Green, Govan or Lisburn, to the special centres provided for those purposes. They are all set up in a very particular way; probably the most successful of them, because it has the best facilities, is Govan, in Scotland. There are full facilities for recording, there are full facilities for reviewing by remote video the questioning that takes place, and very considerable protections are built in. I do not believe that now there are many problems arising from questioning of that kind. In Northern Ireland, interesting, there is a considerable degree of trust between the police and the legal profession about the way in which such interviewing procedures are conducted.

It was from Northern Ireland that the initial resistance came to the idea of recording. In fact, I can remember moving an amendment to the 2000 Terrorism Act, which was resisted, on the grounds that it was not practical, for some reason, in Northern Ireland?

(Lord Carlile of Berriew) The Lisburn interrogation centre, which is a temporary provision because they have been building a new one, seems, to me, to work pretty well, given the physical difficulties of working in portable buildings, and there are one or two other physical difficulties there, like draughts, things literally as basic as that. And one has an integrated suite, where the forensics are carried out first, the suspect is taken into a clean room, basically put on a clean groundsheet, everything is removed, and the whole process carries on in that insulated, sanitised way, with full observation. And the legal profession in Northern Ireland seemed, to me, and I have spoken to both parts of it, to be pretty content with it, and the police would rather be scrutinised than accused.

Yes; and what about access to legal representation, when someone is arrested under the Terrorism Act?

(Lord Carlile of Berriew) Under the Terrorism Act, there is no problem, as I understand it; normal PACE standards are applied, on the whole. It is very rare for non-PACE, i.e. Terrorism Act, standards to be applied. There will be exceptional cases where, for very important, operational reasons, it is vital that information should not go out too early that a man or woman has been detained, there might be a bomb out there, for example, which one does not want to have detonated; but I do not think there is much of a problem about that part of the system.

But it is optional, is it not, i.e. it is at the discretion of the police, it is not provided for in codes, is that right?

(Lord Carlile of Berriew) There is a degree of discretion, but it is a very limited degree of discretion. And since I became the reviewer of the Terrorism Act, as you will have observed from the report, one or two of the parts of the legislation that are relaxed, the normal PACE standards have been relaxed for Northern Ireland, have been removed. The Good Friday Agreement provides me, as reviewer, with the headline word of 'normalisation', whatever that means, but I take it to be normalisation to the standards we have generally in England and Wales, and, in practice, I think, in almost every case, those standards are applied.

Chairman: Thank you. Can we turn now to port and border controls.

Bob Russell

Lord Carlile, you have been somewhat critical about some of the operations of port and border controls, and, particularly on accommodation, you have made critical comments about Heathrow and Waterloo Eurostar, although we have had a report which says that, at the other end of the scale, excellent facilities are planned for Coventry Airport and also at Heysham, in Lancashire, where the operator has provided good accommodation. So we have got these two extremes, one assumes. To what extent do you think that the police at ports are being inhibited in their work by the lack of accommodation available to them?

(Lord Carlile of Berriew) In a word, considerably. Let us take Heathrow as an example. I believe I have this figure right, but no doubt someone will correct me if it is wrong, but I believe that 8 per cent of the gross domestic product of the United Kingdom goes through London Heathrow Airport, so it is an astonishingly, hugely important avenue for trade and for passengers. I have watched the police in operation, Special Branch in particular, at Heathrow Airport, and I think that they work in appalling conditions, by and large; they do not have enough space, it is as simple as that. Now as I said in my report on the Terrorism Act, I was puzzled by the conflict of evidence I found between the Metropolitan Police and BAA, who operate the Airport, because the police were telling me that there was a problem, I saw the problem for myself. BAA, I went to see the most senior management of BAA, and they said, "Problem; what problem? Nobody's told us about a problem." I am caricaturing it slightly, but that is the essence of it. Let me give you an example of what I saw at Heathrow. I was in the very busy, general international terminal at Heathrow, and a man had been stopped who was a professor, it was said, at a university in the Middle East, and there was considerable interest in him, and the police were working very hard, in an overcrowded room, with a lot of computer screens and a sort of small, temporary interview room in the back, where nobody could have any peace and quiet, making inquiries into this man's credentials. So I said to them, "Where is the man?" and they pointed to him. And he was sitting outside the police room, on a public bench, in a public area, they did not have anywhere they could, not lock him up, but just place him quietly in isolation for a time and give him a cup of coffee and make sure he did not get out, he could have got up and left, yes, there are cameras all over the place, but he could have tried to get up and leave. For him, embarrassingly, because let us assume, as was probably the case, that he was just a genuine professor, on a genuine academic trip to the United Kingdom, people were walking past, looking at him outside a room, where it was pretty plain there were police officers, so there he was, under scrutiny; that, incidentally, used to be even worse at Waterloo, but they have changed it now. So there is a lack of accommodation. Some of the newer facilities elsewhere are very, very good. The most striking comparison is made by one visit to Stranraer, because in the old port at Stranraer I was taken by a Special Branch officer to see their facilities; now, as you know, Stranraer is a very big freight and passenger port for Northern Ireland. We went to the temporary building, probably put there in about 1965, rusting and decrepit, and he was going to show me the facilities inside it. I do not think it was a put-up job, but a key would not work in the lock, we could not get in, we had to look through the window. There is another port, a couple of miles down the road, which is new, where the police facilities are fairly small but they are more than adequate for what is needed, they are new, the technology is in there. And that is just not an acceptable comparison to have to make, and that is why I mentioned it specifically in my report.

Lord Carlile, you have described that very graphically. If I can just take you back to Heathrow, when was this visit you made?

(Lord Carlile of Berriew) The visit to Heathrow was about a year ago, getting on for a year ago.

Are you aware, in that year, of any moves to resolve the problems at Heathrow; will you be making another visit?

(Lord Carlile of Berriew) Yes, I will be making another visit. I am aware of moves to resolve the problem. Officials are working on this, on a fairly constant basis, as I understand it; and I make it my practice, if I see something bad, to go back and see if there has been an improvement.

You have described the operational problems that have been created at Heathrow, Stranraer and elsewhere; have you been provided with any estimates of the required accommodation space which ought to apply at one end of the scale, Heathrow, and at the other end of the scale, at some of the smaller air and sea ports?

(Lord Carlile of Berriew) I have not been provided with an architect's plan of the space, but I have been provided with general descriptions of the space, and it is not necessarily proportional in size to the passenger throughput. Obviously, if you have a sea port with lorries coming through it, you need quite a lot of space because the lorries and cars have to be searched. At an airport, you need enough rooms to be able to carry out the function properly, but you are talking, in each terminal, about only the equivalent of two Tie Rack shops; the trouble is, the rent from a Tie Rack shop is very high.

Chairman

Yes, that is what it is all about, is it not?

(Lord Carlile of Berriew) Of course, Mr Mullin, that is what it is all about. The rent from a Tie Rack shop is high; and I hope Tie Rack will forgive me, probably they will enjoy the advertising. The police should be given the accommodation for nothing, or for very little, because they are protecting the interests of the airport operator as well as of the public.

Bob Russell

So you could say that the accommodation should be tied into what is required; and do you think there ought to be a statutory provision to say what should be provided, and it must be provided?

(Lord Carlile of Berriew) I think there should be a statutory power. I am not sure that we should ever go so far as to set in statutory stone the measurements of the offices provided, because then the minimum will be provided, and there are some places where, to be fair to operators, particularly of ports, better facilities than the minimum are provided. However, I do think that there should be clearer powers for the relevant Secretary of State to enact statutory orders to ensure that the provision that is needed is provided, if agreement cannot be reached for a non-statutory way of guaranteeing that this can be achieved.

Obviously, you will be aware, Lord Carlile, of the recommendations of Her Majesty's Inspectorate of Constabulary, particularly in respect of a National Co-ordinator of Special Branch. Would that improve Special Branch operations at ports?

(Lord Carlile of Berriew) I am pleased that you asked that question because I think it is a very important one. The structure of Special Branch does cause me some concern, and I read with enormous interest the recent report by Her Majesty's Inspectorate of Constabulary; it does not give a prescription, it gives a choice of prescriptions. I think, any one of the prescriptions would be an improvement on the present situation. I believe that the National Co-ordinator should have at least Deputy Chief Constable status, indeed, Chief Constable status, in my view, would be preferable, because I think it is a very important position. I can see the arguments for having separate Special Branches for each of the forces, and indeed some of the smaller Special Branches are among the very best, as the HMIC report sets out. But there is a need for much greater co-ordination from the public safety point of view; also there is a need to give a better career structure to Special Branch officers. I think I used the term 'pasture' in my Terrorism Act report to describe pejoratively some of the people who are put on port duties, they are put there for pasture because they cannot do anything else; it is not that kind of job any more, and indeed, now, to be fair, most of the ports' officers are very dynamic, not necessarily young but very dynamic, and know their job very well, and are very high quality. We need a universality of quality, and I think that would be achieved best by following the HMIC Report. I know that a lot of work is being done, because the group of officials I work with most closely in the Home Office are involved in this, and I am aware, from a letter I received recently, that this is receiving close attention, and I am glad.

I will return to that in a moment, but just to take you back to another one. Are you suggesting, therefore, that there is a general problem with joint working and information sharing between the police and immigration officers at ports which needs to be addressed, or is this one that can evolve?

(Lord Carlile of Berriew) I do not think there is a problem, I think it would be unfair to say that there was a problem, though I think there is a problem about the technology, they need better computer systems, they need to work more efficiently, and so on. But I think there is a need to speed up the evolution of the Special Branch so that it moves on rather faster than the evolution of the species; and I hope that a committee like this may be able to catalyse the process which is already being undertaken.

Lord Carlile, you will be aware that the Committee's Inquiry into Border Controls recommended that all the existing border control agencies should be combined into a single frontier force. Therefore, would you support the creation of a single ports and borders police force, for the reasons you gave a few minutes ago?

(Lord Carlile of Berriew) I am undecided about that one. When I first started looking at these issues, in my first three or four months as reviewer of the Terrorism Act, it seemed to me to be self-evident that a single borders force was what was required; now I am less sure, having looked into it further. I do think that the linkage with general policing is very important. Let us remember that Special Branch are dealing to a great extent with drugs and money-laundering as well as terrorism, though terrorism is the top of the agenda. Actually, I think the structure is much less important than the way in which they operate, and if we get hung up on demanding a structure which meets huge resistance from the police establishment we are less likely to achieve it than by making the operational changes which will give you the de facto structure without necessarily the de jure structure.

If your jury is out, therefore, on the single ports and borders police force, do you think there is a case for a combined border control agency which incorporates the Immigration Service, Customs and Excise and the police?

(Lord Carlile of Berriew) Certainly, I think that there is a great deal of room for fully co-operative working. I went to a small port in Scotland recently and was able to observe how well this can function, with all the agencies in one room. They had one long room, and at the end of the room there were three booths, and that was where they had their private communications systems respectively, for the police, the customs and the Immigration Service. Because there are going to be moments when they are not going to work together, there are bad apples on every tree, and they have to cater for that kind of situation, however rarely it occurs, it does occur from time to time, and there are going to be interests they do not necessarily share, but they work very, very well together.

Mrs Dean

Lord Carlile, you said that good manifest information can save lives. Why is the quality of manifest information so variable, in your opinion?

(Lord Carlile of Berriew) The straightforward answer to that is because the information provided when booking your passage varies from carrier to carrier. For example, if you travel by Buzz.com, it has now been taken over, the information that is required by Buzz is very detailed; now there is a particular reason for that, as I understand it, there is a captain, a senior official in Buzz, who has some relevant police experience. Generally, with all Internet bookings, a lot of information is provided; on the other hand, if you wander up to Dun Laoghaire harbour and you go into the ticket office and buy your ticket and get on the ship to Holyhead, there is going to be a lot less information. I saw a striking example at Holyhead, in which the only information provided about a car with four men in it was one word, O'Connor; well there is quite a lot of that about, is there not, so really it was not terribly useful manifest information. On the other hand, if someone climbs off an easyJet, and their name, their date of birth, their credit card details, etc., are there, because you just cannot get on without it, then there is far more information, which makes it easier for the police. And when one is dealing with people coming from different parts of the world, if we are not just talking about the Irish issue, as much information as possible on manifests is desirable. The Government, as I understand it, and certainly Home Office officials, are anxious about this manifest situation, because they would rather achieve what they need to achieve by voluntary means than by statutory enforcement, because they will just get the lowest common multiple if it is by statutory enforcement. All I want to say really about manifests is that the information has to be adequate to protect the public, when we travel out and in and when other people travel in and out.

In your view, what is adequate; what is the minimum?

(Lord Carlile of Berriew) I would not pretend to be the absolute expert on what is adequate information, but, in my view, it should involve at least a full name, a permanent address, a date of birth, which is a crucial piece of information, and a passport number, enough information to enable some cross-checking to take place on the developing databases which are going international, albeit with some difficulty, and certainly on the domestic databases.

Do we require primary legislation to develop that minimum standard?

(Lord Carlile of Berriew) We do not require primary legislation, because it can be achieved voluntarily. As you know, the carriers are pretty well organised, and their representative associations speak to Government all the time. I inquired into this as part of the exchange of views with officials before I wrote my Terrorism Act report, and I was discouraged from being too proscriptive about this, and indeed made some alterations to an early draft of my report with this in mind. I think this is one of those occasions when one says that the end justifies the means, and as long as statutory powers are there in reserve, which they are now, I am all in favour of trying to achieve the goal by the best means possible.

Would it not be preferable to have the manifest information either voluntarily or by legislation rather than having identity cards, which, presumably, those who were terrorists would choose not to carry anyway?

(Lord Carlile of Berriew) I think the identity cards issue is an extraordinary difficult one, and much more intellectually sophisticated than sometimes we give it credit for. I had a conversation, which I think I mentioned in my report, with two young French undergraduates, in which I sought to provoke them into expressing the view that having to carry an identity card was an outrageous breach of their fundamental rights and civil liberties, and these were two bright and intelligent Frenchmen, whom I know well, and they did not know what I was talking about, they could not begin to understand the issue. I think the fact is that they have them and we do not; now whether we should is a matter for people other than myself, because, fundamentally, I believe, this is an issue for the House of Commons, in the end, but I do not think it is an easy question. It is true certainly that if we had a simple form of identity card, different from the French identity card, which technologically is now a touch antediluvian, it would facilitate certain things in our lives, particularly for our sons and daughters, for example, when they want to go and get a drink in a public house, simple things like that, or when they want to prove their age to the police, because some of them look younger than they are. But whether we should do that is not a question for me, really.

Can I turn to security checks for aircraft crew; can you expand on the mixed messages that you received on the adequacy of those security checks?

(Lord Carlile of Berriew) Yes, and I am going to have to do some more work on this. I enquired closely at Heathrow as to the checks on aircraft crew, and it seems to me that a rogue organisation that was able to infiltrate an airline might be able to infiltrate crew at Heathrow Airport - and I am not singling out Heathrow, it is just one I have been to and asked the question, so it may apply elsewhere - who would not be subjected to as rigorous security checks as you or I when we go to that airport as ordinary, fee-paying passengers, and that causes me some concern. When I asked Special Branch about this, Special Branch officers, and I am talking about working bobbies now, I have a great belief that if you want to know what is really going on in the police force ask a detective sergeant, or a detective constable, and they are the guys who say to me, "Yes, there is a risk, and it needs some attention." On the other hand, there are certain airports in this country, Liverpool is one, London City Airport is another one, and I must say that one because it is a BAA airport and I do not want to be unfair to BAA, where I believe there are rigorous checks, as rigorous checks on crew as on anybody else. My real concern is about the big international airports, and it would apply, of course, as much to airports outside this country as airports within this country.

Can you say, in your opinion, what is the level of threat from terrorism via small ports and airfields?

(Lord Carlile of Berriew) Very high. Let me deal with small airfields first, because some newspapers latched on to my comments about small airfields. Having been an MP, I should have realised what I was doing. Then I received hundreds of letters and e-mails from very nice people who are private pilots, saying that I was committing calumny against them, and I did not mean that at all. Because I recognise, and please may I say it now, that private pilots are a sort of Home Guard, and will be the first people to report something unusual they see in the air, so I recognise their value. However, the small airfields were described to me by a working bobby as the soft underbelly of ports policing, because there are so many airstrips. Of greater concern to me is the very large number of small sea ports, coves, and the fact of our being an island; now, of course, we cannot avoid being an island, but I think we could increase the level of policing of ports and coves. If you were to look at the performance of the police in Dumfries and Galloway, which I think is the smallest force of all, apart from possibly the City of London, they have an excellent system of policing those ports, but it is a very particular issue there. They have developed a sort of community policing system which draws on information from many members of the public who live at strategic points, so that information is passed on, on a routine basis, and suspicions are investigated very frequently; it is an excellent system. You have to remember though that lethal material could be brought into this country on a small yacht, into a small harbour, anywhere round the coastline; it is impossible to provide a foolproof system. It is always going to be a sieve, the policing of our small ports, but I think it should be a sieve with a finer mesh than we have got at the moment. Once, when I was on holiday in Cornwall with my family, I found a sarin canister on a beach, a popular tourist beach, in north Cornwall, and reported it to the police via the local kite shop. I was delighted by the response, though I was not prepared to admit to all the other holidaymakers on the beach, two hours later, that I was responsible for the beach being closed for the day and the helicopter hovering overhead. But something of that size, it was the size of an ordinary beer barrel, which is potentially lethal, could be carried on a 30-foot yacht, having been offloaded from a larger boat out at sea; so that is a very real danger and causes me an enormous amount of concern. And I think there is room for improvement in the methodology of the policing of small ports and coves.

Have you seen any improvements since September 11?

(Lord Carlile of Berriew) I was appointed to this job on September 11, 2001, by chance, about three hours before all hell broke loose, so I cannot speak of improvements very much comparing what was before September 11 and now. I have absolutely no doubt that the police, right round the country, are doing everything they can within their existing resources, methodology and organisation, and here we are returning to the Special Branch question once again, to improve the situation, but there is, I think, quite a long way to go.

Bob Russell

Very briefly, on the policing of the small ports around the coast of our country, do you think there ought to be a recommendation from the Home Secretary, and perhaps additional funding that goes with it, to strengthen, and indeed perhaps introduce, if they do not exist already, river and coastal police on vessels on our rivers and around the coast?

(Lord Carlile of Berriew) I would not like to give a categorical answer to that, because I have not done a measurement of the effectiveness of police on boats, as opposed to police on land. One's instinctive reaction would be to say that police on vessels around the coast and on rivers, and so on, are an integral part of careful policing of our coastline when anti-terrorism activity is so important to the protection of the public. I think the answer I would give really is that if we had a more integrated approach to ports policing then we would be able to determine more successfully what proportion of resources should go towards that kind of activity.

Can I ask that when you do your next report perhaps you could consider that, alongside the excellent example you told us about the Scottish police force?

(Lord Carlile of Berriew) Yes. Thank you for that.

Chairman

Just turning to Annex F in your report, arrests under the Terrorism Act, I see that in the year from February 2001 to February 2002 there were 131 arrests; what does 'Arrests after Examination' mean, is that in addition?

(Lord Carlile of Berriew) Somebody is stopped at a port by a police officer, either on information or what some of them rather endearingly call 'copper's nose', which is a very important part of all this, and they are examined; after that, an arrest can take place. So that explains that column.

So the 34 in addition to the 131, or they are part of the 131?

(Lord Carlile of Berriew) No, they are part of the 131.

Of whom 41 are 'Charged', 19 out of the 131 with offences relating to terrorism, and then 26 under 'Other Legislation', just criminal activity of one sort or another?

(Lord Carlile of Berriew) It could be anything; receiving stolen goods is often the example.

Twenty-two for immigration offences, is that right?

(Lord Carlile of Berriew) Yes.

It says 37 for 'Irish Terrorism'. I do not quite understand. If 41 are 'Charged', are you saying that the 37 come out of that 41; this is under 'Irish Terrorism' now?

(Lord Carlile of Berriew) No. That is a separate head.

Do they come out of the 131?

(Lord Carlile of Berriew) They are 37 of the 131.

So you could add them then to the 19 who are charged under the Terrorism Act as being terrorist-related?

(Lord Carlile of Berriew) Yes.

And then 'International Terrorism'?

(Lord Carlile of Berriew) We are talking about arrests, not charges, here. You see, the 'Charged' are 41, but there are far more arrests than charges. So you may find that people are being arrested under more than one head.

I see. But, basically, of the 131, 19 end up being charged with something relating to terrorism and 22 turn out to be immigration offences, or alleged immigration offences?

(Lord Carlile of Berriew) Yes; which, I would suggest, is quite a good strike rate.

That was what I was going to ask you. There used to be a lot of criticism under the old Prevention of Terrorism Act that lots and lots of people were picked up for trawling purposes and their address books were photocopied and they were sent on their way?

(Lord Carlile of Berriew) It works much better now.

It does, does it?

(Lord Carlile of Berriew) Yes. I have spent quite a lot of time literally standing at police officers' shoulders, seeing what they do. They stop a huge number of people, the figures are there, it is getting on for a million stops in a year, and so if you were to take the number of people charged as a proportion of the stops it is very small, but when you take the filter from the stops then it is a reasonable proportion. And the average stop, if I can give you a simple example, a real one, a woman was walking through Liverpool Airport, she was stopped, she was asked where she was going, she said something like, "This is the fourth time this year," with a smile, she was asked where she was going, she gave the name of the hotel she was going to, she was asked what she was doing, she described her occupation, and she continued. Now that is a stop. That is the first stage of the filter process, and, by and large, it is done with considerable skill, and occasionally even charm, there are very, very few complaints. It is very difficult to get to the complainants, but I did find one who was prepared to correspond with me, because he was a businessman who felt very strongly about it, and action was taken before I was involved on that complaint.

Just finally on the Terrorism Act 2000, have you received any positive feedback from the Home Office about your recommendations?

(Lord Carlile of Berriew) Yes. I have now produced three reports on the Terrorism Act 2000. They accepted a procedural recommendation in my first report on Part VII, which relates to Northern Ireland. They have said to me in every case that they are at the very least consulting on recommendations for change. How they would react if I were to recommend, for example, that the Diplock courts should be abolished I am less certain, but after a good deal of inquiry into that issue I have not.

But it remains a possibility for the future?

(Lord Carlile of Berriew) Yes.

Chairman: Shall we turn now to the Anti-terrorism, Crime and Security Act 2001, where you covered, of course, only Part IV, Sections 21, 22 and 23, which permit indefinite detention without charge of persons who are certified to be suspected terrorists and who cannot be removed because of Article 3 of the European Convention.

Mr Cameron

Just before that, just from listening to your answers, I wanted to ask just one question. It seems that your role includes reviewing the security aspects but, with this new work, human rights issues as well. Do you get enough support, in terms of advice about security and small ports and airports; these are quite technical areas, do you have enough technical support on security issues?

(Lord Carlile of Berriew) Yes. I hesitate in answering the question because I am an independent reviewer and I guard my independence jealously, and I am very happy to be briefed but I am not happy to be told. What I would say is, in direct answer to your question, I can ask anyone anything, and I have yet to be refused an answer or a briefing. I believe that I am briefed at as high a level as I need to be briefed. I mentioned that last year I met with the Director of MI5, and arrangements are being made now for me to meet with Eliza Manningham-Buller. I have access to the Home Office, free access to the relevant part of the Home Office, as in I have a pass and I can go in, and, when I go in, often I am asked by the head of a relevant section to stop and have a chat and we talk through various issues. So on both a formal and informal basis I am pretty satisfied with what I receive and would not hesitate to ask for more. What I think I can assure you is that if I asked for something of that kind and was refused I would put it in my report.

Just one general question on the Anti-terrorism, Crime and Security Act. From your report, there is a very clear sentence, on page 14. "From the material I have seen, it is a certainty that there remain in the United Kingdom individuals and groups who pose a present and real threat to the safety of the public here and abroad." I was just wondering, and maybe this goes beyond your role, it seems to me that we may be stuck with these detention provisions for a very, very, very long time, because we cannot deport these people; while September 11 woke everyone up to the threat, it did not actually change the nature of the people who were here or who were trying to come here. Is it your view that we may be stuck with this element of the Act, the Home Secretary's power to detain, for a very long time, or would you be more optimistic?

(Lord Carlile of Berriew) I agree with you completely, I think we may be stuck with it for a long time. Of course, the Act runs out in 2006, but that does not mean there cannot be a new Act that does much the same. There is an international dimension to this. I think the Privy Counsellors committee is carrying out some interesting background work into looking at the differences in approach to deportation to certain countries, I do not think I can properly say which countries, but to certain countries, by different members of the European Union. It would not surprise you to know that the French possibly take a more relaxed view to deportation to certain countries, Article 3 wise, than we do, and the Germans likewise. And I suspect that there may be room for greater flexibility in the future in relation to some countries; that may depend, of course, upon the nature of Governments in those countries, really that is a political and diplomatic issue. But you have quoted accurately, of course, from my report. I would not want to see some of the people about whom I have read, open and closed material, out and about on the streets of the United Kingdom. I think the Home Secretary had no option but to detain them, once the Act was enacted; and then we enter the gate of the prison, of course, the whole issue about how they are detained, for how long they are detained, and the problem of keeping people who are not charged without limitation of time. What you say is absolutely right, Mr Cameron, they could be there for a very long time.

Do you suspect that, in order to do this, we had to opt out of the derogation of Article 5 of the ECHR, using Article 15, which says you can do this only in time of war or other public emergency threatening the life of the nation? That is going to be challenged. I suppose I am seeking free legal advice, but do you think it will be sustainable to say, year after year, "Yes, there is a public emergency threatening the life of the nation"?

(Lord Carlile of Berriew) It is a very interesting question, and I am not going to answer it. Just to be historic about it, the Special Immigration Appeal Commission ruled the derogation was unlawful, was plainly unlawful (Mr Justice Collins). The Court of Appeal ruled that the derogation was absolutely, plainly and, beyond peradventure, completely lawful. It is on its way to the Judicial Committee in the House of Lords, the House of Lords will have to rule; it will go from the House of Lords, as a certainty, to the European Court of Human Rights. So it would be an extremely bold lawyer who was not involved in the case who would even dare to venture an opinion about the derogation. What we have to assume is that there is a real prospect that the legislation which was introduced by the Government was not introduced lightly, and so the derogation may well be upheld; and the whole of my approach to this Anti-terrorism Act issue that I have to review has to be on the basis that the derogation subsists. Happily, I will be out of a job if the derogation is ruled unlawful, I will not have anything to review at all.

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.

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.

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.

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.

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.

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 party managers, the Government's business managers, rather.

Until 2006, when we get a proper crack at it?

(Lord Carlile of Berriew) Yes.

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.

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

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, 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 men, in their cells, and I arrived at two cells doors and there was a big notice on the door, saying 'convicted'. And 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 (Tyndalwood ?), 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

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

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.

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.

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.

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.

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.

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, (Burkett ?), 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 odious in the highest degree, 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), because certainly it is in my parents' lifetime; but I do not think there is a direct comparison to be drawn.

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.

To which, I suppose, Lord Carlile, 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.

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.

But there are some enemies in our midst?

(Lord Carlile of Berriew) There are enemies in our midst.

David Winnick: Thank you very much.

Chairman

Just finally, Lord Carlile, you suggested some less intrusive alternatives to custody should be tried, exclusion orders, registration, restraint orders, or electronic tagging. Can you expand on the reasons for those?

(Lord Carlile of Berriew) Yes. I was responding to some remarks by the very distinguished Lord Professor, Professor Clive Walker, who has certainly written the standard working textbook on the terrorism legislation; he has suggested that there may be less intrusive forms of restriction, like house arrest, tagging, and so on. It was not my intention to give the impression that I was recommending they be used, I was recommending that they be investigated to see if they can be used. Locking people up without charge is a heavy-handed thing to do, by any standards, and if, for some people, there are alternatives then certainly we should look into them. I had particularly in mind people who may have acted very irresponsibly around influencing young people in mosques, because there is no doubt that there has been some very inappropriate influence used in mosques, who, on further investigation, might seem to be foolish rather than malignant, and some alternatives might be available. And I use it only as an example to deal with an issue of that kind, whilst in no way affecting something which I would hold very important, their right to free speech without breaking the law, and their right to freedom of religion, freedom of worship, without breaking the law, which are fundamentals, I am sure, to all of us round this table.

Have you had any feedback from the Home Office as to how seriously those alternatives are being considered?

(Lord Carlile of Berriew) I think something was said about it in the debate in the House of Commons, very briefly, on the basis that, "Well, we'll consider anything." I am sure the Home Office does not like locking people up without charge, they find it a painful process, it is immensely time-consuming, it uses a huge amount of resources, and they have to pay people like me to review it; so it is not a welcome process, by any means.

Do the Home Office respond point by point to recommendations that you make, in the way that they do to a select committee?

(Lord Carlile of Berriew) Yes.

You mentioned that it was not the practice of the Special Advocates, necessarily, to meet the appellant whose interests they represent. Now, for those of us who are non-lawyers, that seems a very strange way of going about things. Why is that?

(Lord Carlile of Berriew) It is pretty strange to lawyers as well. It goes further than you are saying, Chairman, the Special Advocates are prohibited by law from speaking to the people whose interests they represent once they have seen any closed material. The rationale for that is that one may be dealing with terrorists who are so skilled and subtle that almost whatever you say to them will enter their understanding in a very lateral way, and they will be able to deduce, for example, that certain places are being watched, or certain communications are being listened to. On the other hand, of course, the fact that they have been locked up and certificated might just suggest to them that certain places are being watched and certain conversations are being listened to. My own view is that, the Special Advocates, who are chosen very carefully, not on a political basis, indeed, they are a very interesting range of lawyers, many of them who are established civil libertarian lawyers, with years of trying to kick the Government, occasionally, in the Administrative Court, I believe that they should be given a little bit more flexibility. Certainly, I think that they should be able to go to SIAC, or maybe to the Government, and say, "Look, I really would like to go to see this chap, because I want to give him the following advice. I believe that if I give him that advice we'll have a far more realistic hearing, he'll contest fewer facts and will go for the issues that really matter, what are his beliefs, what are his purposes." And my view is that if a Special Advocate were allowed to do that, possibly accompanied by some appropriate person, then it would make the system more efficient. The Special Advocate system is evolving, however, and I hope that that evolution will be allowed to continue.

How do they communicate with their clients then, in writing?

(Lord Carlile of Berriew) They do not communicate with their clients very much at all. Indeed, I am not aware of any significant level of communication with the "client". Certainly, there are communications with the private lawyers for the detainee, the detainees always have their own lawyers, their own solicitors, their own barristers; of course, their own barristers do not see the closed material. So there is plenty of room for an iterative process between the Special Advocate and the conventional lawyers, but I would like to see the Special Advocate able to bypass the conventional lawyers in certain circumstances.

How do you become a Special Advocate?

(Lord Carlile of Berriew) You are asked by the Law Officers, as I understand it. To be fair to the Government, they have appointed people who are, as I think I was trying to say earlier, established judicial review lawyers, with very, very good records of being prepared to challenge Government, and there is not a patsy among them.

No; they have got street credibility. You recommended some training for the Special Advocate, but is there a need for a separate code of conduct which addresses their unique professional difficulties?

(Lord Carlile of Berriew) Of course, they talk to one another, barristers do, all the time, it is a very collegiate profession. A code of conduct, I do not know that a code of conduct at this stage necessarily is going to be helpful. Barristers who talk to one another all the time are a bit resistant to training, but those of us who attend Judicial Studies Board training courses, because we have to, as part-time judges, and I have been doing that for a long time now, find that, although we go along grumbling that we are going to be told the obvious, the obvious is not always as obvious as you think it is, and the training can be extremely beneficial. I would like to see a modest formalisation of the Special Advocate system, so that they were more formally collegiate and were able to have some training from outside, with an input from, I mentioned one academic, there are others, Professor Connor Geraghty is another very distinguished academic, who has got some very radical and interesting ideas to offer on these subjects. For that kind of training to be carried out in a slightly more formal environment, even though he is a member of the chambers of some of the Special Advocates, I think would be an advantage.

Lord Carlile, you have been extremely helpful. Thank you very much for coming, and we will follow up some of the points that you have made today.

(Lord Carlile of Berriew) Thank you very much, Chairman. I am very grateful to the Committee for its courtesy and consideration.

Chairman: Thank you for coming.