Examination of Witness (Questions 1-19)
8 FEBRUARY 2005
RT HON
CHARLES CLARKE
MP
Q1 Chairman: Good afternoon, Home Secretary.
Mr Clarke: Good afternoon.
Q2 Chairman: Welcome to the Committee.
It is the first time you have been in front of us and I think
the first of the Select Committees of the House of Commons that
you have given evidence to. A warm welcome to you, thank you for
giving us a significant amount of your time. As you know, we want
to talk primarily about terrorism and related issues but I hope
we will also be able to pick up on yesterday's announcement and
some of the other areas where the Committee has been interested
over the last year. Could I start with a few questions about terrorism
issues. Could I just ask a straightforward question: in your own
judgment, has the terrorist threat to the United Kingdom increased
or diminished since the terrorist outrage in Madrid just about
a year ago?
Mr Clarke: On the basis of the
evidence that I have seen, Chairman, I would say that it is about
the same. Certainly there has not been a significant diminution.
It is the case that we are aware of a significant number of individuals
and organisations which seek to prosecute acts against this country.
Q3 Chairman: Would you agree with my
view that a lot of the public debate in this country about the
terrorism threat is quite polarised at the moment with some people
taking the view that you have just expressed that we face quite
a serious terrorist threat and others expressing a great deal
of scepticism? Do you think that is the case and have you any
explanation as to why public opinion in this country should be
so polarised on the issue whereas in many other countries there
seems to be a great degree of consensus?
Mr Clarke: I think it is the case.
I think it is the case for two or three reasons. One reason is
that individual liberty and the rule of law has always been central
to the nature and structure of the democratic society in which
we all live in a way which is not the case in a large number of
other countries in the world. It is something of which we should
rightly be very proud. That means that when there is any threat
which gives rise to any consideration that there should be any
inhibition of those liberties, people are naturally concerned
at that fact. Even if you go through the European Union there
is a significant number of countries in the EU which do not have
anything like that long history and even in your and my living
memory have lived under regimes of both the right and the so-called
left, of which this was not the case. That is one important reason.
I think a second important reason is that the events around the
weapons of mass destruction issue in Iraq have led to a scepticism
about the quality of intelligence on important matters. I do not
say that is justified, in fact I think it is not justified, but
there is no doubt that the great range of issues around that have
given rise to scepticism—I use the word in its genuine sense,
doubt not necessarily disbelief—about what one can or cannot
believe about security assessments. There are other lower level
factors in which I think the deep cultural and political factor
in the first place and, secondly, the particular events around
WMD have been particular factors. For me, and I am glad you referred
to it just now, there is the need for a national debate about
these issues. It places the onus certainly on me but also all
of us to find ways of debating this question in an informed way
without either giving rise to unnecessary fears or revealing too
much about what we know and how we know about the existence of
these threats. I am actively working at this moment on thinking
how we can advance such a discussion.
Q4 Chairman: I wonder if you could share
with the Committee a little bit more about this national debate.
Obviously it is unhealthy, as you imply, to have a debate where
there are those who feel they have to protect civil liberties
and also argue there is not a terrorist threat and those who argue
we need to take strong measures and use the increased threat of
terrorism. It would be very useful to have this debate if there
was a consensus about the level of terrorist threat. Given the
problems we have got, what sort of intelligence information or
other types of information do you anticipate being able to put
into the public debate, into the public realm, to enable that
national debate and that national consensus to be more informed?
Mr Clarke: I am not able to answer
that question fully at the moment because, as I said a second
ago, I am very actively considering it, but I think what can be
brought into the public arena is, firstly, a general description
of the nature of the terrorist organisations which are seeking
to threaten us. Secondly, a general description of the modus
operandi which some of these organisations have adopted, including
their own so-called justifications for their acts and the way
in which they proceed, with specific examples of the way in which
they have proceeded over the recent period outside this country
and in what variety of different ways. Thirdly, some more specific
picture, at least in principle and perhaps fictionalised, of the
way in which a particular group would work to set about putting
its threat into effect. The more that cases can be brought to
the courts, and one of my general responses to this is that we
need to bring as many cases as we conceivably can to the courts,
then the court process and the evidence in front of the public
court will give evidence of the way in which people operate in
these ways and will help us do it. I think it is by presenting
that kind of situation in the round that we have got the best
way of illustrating the situation that we address. If I may say
so, I thought you put it very well. I think everybody should accept,
firstly, that there is a threat and, secondly, that we have to
protect our fundamental liberties. The fact is, as we both accept,
then everybody will have their slightly different take on how
to deal with that. I think those who say there is no threat are
simply living in a dream world which simply is no reality and
I certainly cannot live in that world and I think most Members
of Parliament could not live in that world. The question is what
is the nature of it and that is why this debate is so important.
Q5 Chairman: To press you a bit further.
If I could put my cards on the table, I am one of those who believe
that we will see more events like the one in Madrid before we
are through this crisis, to put it mildly. Do you think the current
level of public and media scepticism about the threat is actually
hampering our ability as a society to tackle terrorism effectively?
Mr Clarke: I do. I gave a speech
to the Parliamentary Press Gallery shortly after the events of
9/11 in 2001 at which I said it was a source of sadness to me
that some did not understand that the threat which the al-Qaeda
group were posing was not simply to the Twin Towers or to others,
it was to the very fundamentals of our democracy, they were seeking
to bring down democratic structures, for example not to permit
women to have any role in society, to attack any idea of freedom
of religious worship and belief, to attack our rule of law in
every respect, to attack our free economic systems. In my opinion,
all those who are under threat from that attack, whether in the
media, which of course could not exist under an al-Qaeda world,
or in the legal world, which could not exist under an al-Qaeda
world, or Parliament, which could not exist under an al-Qaeda
world, ought to unite to deal with this threat. I felt sometimes
that a little too much of the debate was a rather interesting
balance between these chaps from al-Qaeda on the one hand and
President Bush on the other as a bit of a call or mission to give
both of them a fair crack. That is now how I feel, I think that
these people are about fundamentally destroying everything which
certainly you and I, Chairman, throughout our political lives
have fought for, and I think it is actually true most Members
of Parliament have fought for extending those liberties in various
ways. It is an old phrase, but I think it to be true, that the
price of liberty is eternal vigilance and it is necessary for
us, therefore, to be vigilant against those who seek to destroy
those liberties.
Q6 Mr Taylor: Home Secretary, I do not
want to press you into an area where you are unwilling to go,
but on this matter of threat, where I totally subscribe to what
you have just been saying, can you tell the Committee whether
it is within your knowledge that certain intended attacks have
actually been thwarted?
Mr Clarke: Yes, I can.
Mr Taylor: Thank you.
Q7 David Winnick: Home Secretary, just
two brief questions at this stage. In your view, why should anyone
take the opinion that what happened in Madrid and Istanbul is
such that it is unlikely to happen in the near future in Britain?
Mr Clarke: The only basis of that
belief is confidence in the quality of our own security services
in comparison with those in other countries. Certainly in principle
we are at least as much at threat as people in Madrid or Istanbul
or, indeed, in Bali or in other parts of the world. The thing
which has most protected us has been the quality of our security
services and the intelligence that we have. Others, not I, have
used very strong language about the so-called inevitability of
the success of some attack in this country. I actually do not
use the word "inevitable", I do not think it is right,
I think we can avoid it. The fact is it is the quality of where
we are now and our ability to protect ourselves which means that
we have not had events here rather than the fact that nobody is
seeking to target us.
Q8 David Winnick: Can I ask you your
views on what Lord Hoffmann said—I have it in front of me
and obviously you have read it—giving his own judgment apart
from his fellow Law Lords: "The real threat to the life of
the nation in the sense of the people living in accordance with
its traditional laws and political values comes not from terrorism
but from laws such as these", which we know about, "That
is a true measure of what terrorism may achieve. It is for Parliament
to decide whether to give terrorists such a victory." What
is your comment on that?
Mr Clarke: I do not agree with
Lord Hoffmann when he says that the kinds of measures I was proposing,
the control orders or whatever it may be, are a greater threat
to the liberties of this country than the activities of the terrorist
organisations, I simply do not accept his analysis. In passing,
Mr Winnick, perhaps I could observe that his analysis was shared
only by himself amongst the nine Law Lords. It was his own view
and the judgment of Lord Bingham and the majority group of Law
Lords who decided as they did was not to identify with the sentiments
expressed by Lord Hoffmann but to look at the cases, as they rightly
should, on their particular merits. I do not share his view. I
do share the view which he and others would express that our fundamental
ambition has to be to secure a society based on freedoms and liberties,
but I then say if we are going to do that we have to defend ourselves
against those who seek to destroy those liberties.
Q9 Mrs Curtis-Thomas: Home Secretary,
you said a few moments ago that it was your desire to bring cases
to court. Which specific court and under what sort of terms?
Mr Clarke: Ideally, cases should
be brought to the regular court for offences set out in the anti-terrorism
legislation that we have. I am prepared to look at further offences,
as some have suggested, that we could deal with in that context.
It is undoubtedly the best way to secure defence of our liberties
in the way that I have described. If an individual or group of
individuals are convicted in court on the basis of evidence which
can be presented in court of breaches of the anti-terrorist law
that is the way for it to be done. For the avoidance of doubt,
Mrs Curtis-Thomas, I believe that it would be best if every single
case went via that route, I do not see any advantage in going
via another route if you can achieve it by that route, but I also
believe that in presenting evidence in court we have to be
conscious that there are many organisations who are watching very
carefully and drawing conclusions both about the behaviour of
individuals within their own organisations and about the methods
that are used by security to defend our country against those
threats, which may mean it is necessary to proceed to a different
form of court, such as the SIAC approach, on the basis of the
Home Secretary's recommendation on the basis of information which
cannot be disclosed in open court. I think that is necessary in
certain circumstances, as I have said. For the avoidance of any
doubt on my part, my strong preference on every occasion would
be to bring the case into open court on the basis of the counter-terrorism
legislation which is on the statute book or any law that we might
bring, but I have to be realistic and know that there are cases—and
there are—where we have not been able to operate in that
way.
Q10 Chairman: We will come to your proposals
in a moment, Home Secretary. We were told in a recent evidence
session that there were around 70 cases finding their way through
the system to be tried in the courts as a result of arrests under
the Terrorism Act and similar acts, excluding immigration offences
and things of that sort. Do you have any idea when those cases
will begin to come to court because that will begin to provide
the background information that you were saying you needed for
the debate?
Mr Clarke: I have not got an idea
which I can give to the Committee, although if it would be helpful
I would be happy to write to the Committee setting out my best
knowledge of what I can give the Committee on those cases and
when they might come[1]They
are a number of different cases, as you imply in the question,
and they are proceeding on different timescales. The only general
response I can give is that it is my very strong desire, for the
reasons implied in your first question, Chairman, that this happens
as soon as possible because the best evidence that we can get
into the public arena is evidence of what has actually happened
through the court process.
Q11 Chairman: A final question from me
at this stage, Home Secretary. You have not been able to deal
with British citizens through Belmarsh-type detentions, you have
not had available to you the sort of control orders you now say
are necessary. Being honest, has that actually restricted the
Government's effectiveness in the fight against terrorism over
the last two or three years when you have not had those tools
available to deal with British citizens?
Mr Clarke: To some extent, yes.
To quantify beyond that rather loose phrase, "to some extent",
is difficult, but to some extent, yes. What happened, as
you will recall, is that following 9/11 the Government decided
at that time to use the immigration legislation to deal with the
threat as perceived at that time from foreign nationals, which
is why we have ended up in the state of affairs that we have,
but since 9/11 with the massive focus there has been worldwide
on the range of different organisations which provide these threats,
there are British citizens who are involved in the process. I
think that it is right that we should be able to take action in
relation to those and that there has been an extent to which our
inability to deal with that has been inhibited by the current
state of the law. However, one of the reasons why I propose the
changes I do is that getting to a proportionate set of responses
rather than simply detention on the one hand or a very loose situation,
perhaps warrants to intercept phones, on the other, is not a choice
which is a very good choice to deal with the different levels
of threat that come from different levels of people. That is why
I think a gradation of control orders is a good way to address
this.
Q12 Mr Prosser: Home Secretary, you have
been discussing with the Chairman the scepticism which has been
in existence with regard to people's belief or non-belief in the
degree of the threat. Perhaps in this place that is very apparent.
In my view, most people accept that there is a threat and on that
basis are willing to go along reluctantly with some of the very extreme
measures being taken. With that background, how do you explain
to them the decision to suddenly release Detainee C from Belmarsh
whereby in the recent past the view was that there was very substantial
in-depth intelligence supporting the fact that he was linked to
a terrorist organisation and had the ability to take part in such
organisations, and then on the next day he is released without
any control at all? How can I explain to the people who have been
supporting these strict measures that there is not a similar flaw,
perhaps, or a similar difficulty in the evidence which supports
the other detainees at Belmarsh?
Mr Clarke: The explanation I would
give to your constituents or others who raise this with you is
as follows: the only basis upon which we can establish strict
measures, the only basis upon which Parliament would be ready
to establish strict measures, is if Parliament is convinced that
every case where those strict measures are applied is properly
reviewed and constantly reviewed to look at the consistent level
of threat. That it is not simply a question of throwing somebody
in detention and throwing away the key, but the matter is then
looked at in a very serious way. My predecessor, David Blunkett,
gave the assurance to Parliament that he would keep all of the
cases at Belmarsh under review and, of course, that is what I
will do too. That is what happened in the case of C. The revocation
of the certificate does not mean that the individual no longer
poses a threat or did not previously pose a threat, it means that
the threat has changed and diminished and that certification can
no longer be justified in that particular case, and that is what
happened. This particular individual at the time of his certification
was a leading UK member of a proscribed Egyptian terrorist group
and prior to his detention he was active on their behalf in a
variety of countries. He had an extensive network of associates
both in the UK and overseas. However, many of the activities of
his associates have now been disrupted and many have been detained
and they have not been as active as they previously were. This
has all lessened the potential for him to re-engage in his previous
activities and that is why, on advice, I took the decision that
I did. My fundamental defence, Mr Prosser, when your constituents
put that to you is to say we do need these powers but we can only
secure Parliament's agreement to these powers if we will consistently
and continually review their use to ensure that they do not turn
into abuse.
Q13 Mr Prosser: I want to move now to
the position of people who perhaps under normal circumstances
we would want to deport back to their home countries or elsewhere
but we cannot because of the regimes in which they might find
themselves. Do you not think that it would have been a far better
state of affairs if the contact that you are now making, as we
have been led to believe, with foreign countries, trying to gain
assurances and security for people's safety when they go back
to those countries, if those discussions and that pressure had
been applied before we had taken these extreme measures at Belmarsh
of detention without trial?
Mr Clarke: Obviously the sooner
that could have happened the better and I am very glad that Baroness
Symons, as Foreign Office Minister with responsibility in these
areas, has now been able to visit all of the governments of the
countries concerned to discuss with them our concerns. We will
be discussing directly with those governments how we can take
it further forward. The fact is we have had previous conversations
with those governments, not always successfully, so the fact is
that it would have been better to try earlier and harder but it
would not be true that we did not try; we did try but not successfully.
Whether we will succeed in this case, I do not know. I hope we
will because I think there is a reasonably positive environment
and climate for making change in these areas and because I agree
with the fundamental point you made that it would be best if we
were able to address these issues properly. I cannot hide from
you that there are serious issues which the British courts will
take into consideration when looking at the countries with which
we are concerned about the concerns about human rights in those
countries which will be matters in court which will be considered
in those cases. That said, I believe that with goodwill we can
make progress in this and that is what we are seeking to do.
Q14 Mr Prosser: If we come to a position
where the Government is assured that a particular country will
give safe refuge to a particular prisoner or a particular category
of people, how will that be underwritten? What level of assurance
would you require and, more importantly perhaps, would there be
any means of monitoring and checking that that individual remains
a free person?
Mr Clarke: The question of how
such an agreement was monitored would be an important part of
the agreement itself, so it would be part of the process. It is
not just a question of satisfying me, it is a question of me being
able to be confident that we can satisfy the British courts that
this is an appropriate step to take. It is both myself and the
Government more generally, but also the British courts, who have
to be satisfied. I think you are absolutely right to say that
one of the conditions which anybody would look at in these circumstances
is a coherent monitoring regime.
Q15 Mrs Curtis-Thomas: Home Secretary,
if intercept evidence is accepted in other countries where there
are robust court systems and democratic accountability then why
not here?
Mr Clarke: Essentially because
our legal system is entirely different. The fact is the whole
nature of the judicial system, for example in France or Spain
or wherever, is entirely different from our regime first and foremost,
so the role of judges, and in particular juge d'instruction,
in their systems is different from ours. Secondly, the level of
collaboration between law enforcement and intelligence in this
country is uniquely strong. We have focused, in my opinion rightly,
on intelligence as the centre of the way in which we work to identify
some of these areas. By the way, not only in relation to counter-terrorism
but when you look at serious and organised crime, for example
people trafficking and drugs, it is intelligence which is our
key means of being able to break into them. I think we have a
very high level of co-operation, much higher than is the case
with other countries. I believe that many other foreign law enforcement
agencies are very impressed with our level of co-operation. Thirdly,
even if you take all of that into account it remains the fact
that in many of these issues intelligence is brought not through
intercept, not through phone tapping or whatever, but by the existence
of individuals within the organisations we are talking about who
are giving information about what is taking place, and by definition
that key intelligence could not be dealt with in court without
placing those particular individuals at risk. That is one of the
reasons why the review that was conducted came to the view that
using intercept would not give us a significant improvement in
our ability to get convictions. All that said, I do think that
it would not be right to rule out forever using intercept as evidence
and particularly I will look very carefully at the changing technologies
involved, because that was one of the concerns as to how the technologies
are moving to be able to deal with this. I am aware that a large
number of serious people in the country think that this is something
we should look at and I am prepared to continue looking at it,
but the decision I came to was because it seemed to me on the
balance of judgment when I looked at it then that is where we
should be.
Q16 Mrs Curtis-Thomas: Has intercept
evidence been crucial in the cases that we see in Belmarsh? Has
it played a significant role in their consideration?
Mr Clarke: I am not in a position
to give an answer to that question precisely for the reasons that
they are under the regime that they are. I am not in a position
to state directly what forms of intelligence were important in
relation to each of those particular individuals.
Q17 Mrs Curtis-Thomas: Given that the
Government has repeatedly said that prosecution would be their
preferred route, would you be prepared to reconsider the use of
intercept evidence if this was done in the context of other reforms?
You mentioned earlier special courts and you made some reference
to the French system and security cleared judges there. Your advice
or your view on this, please.
Mr Clarke: Firstly, I would be
prepared and, in fact, am actively considering whether new offences
in this area would help us deal with some of these matters better
in open court along the lines that some have suggested.
Q18 Mrs Curtis-Thomas: Is that the extension
to the anti-terrorism measures that you mentioned earlier on?
Mr Clarke: That is the reference
I was making earlier on. Second, speaking entirely personally
and privately, as we are here, I am not an absolute fan of the
adversarial system of British justice by comparison with some
of the other systems that we have. I would be prepared in due
course to look at some other system that could work in certain
areas to move in this area. As you would know better than I from
your own experience, any change in that area is absolutely enormous
and would require a massive, massive shift and very wide consultation,
so it is not something that can deal with the situation at this
moment, but I would be prepared to look at that in the round.
Certainly I accept the case, and in fact it was in the measures
that I suggested, for judicial overview of the Home Secretary's
decisions in this area through a SIAC type process to address
the issues. In the context of that I would be prepared to look
at other evidential issues, such as the intercept question, but
I think it would require a pretty substantial assessment of all
of those issues to get to that point.
Q19 Chairman: The problem you have left
yourself with, Home Secretary, is you said earlier and on many
other occasions you would much prefer cases to come to court,
but because you have not brought forward changes to court procedures,
because you have ruled out intercept evidence, you have left yourself
in a position where the public impression is you are going to
sit down with the security services and decide with them whether
somebody should be subject to a control order and only after that
will it have any judicial process. Would it be more satisfactory
if you had a proper process between you and the security services
where somebody, the Director of Public Prosecutions or whoever,
assessed the body of evidence and actually said, "Yes, this
is a prosecutable case", or "This would be prosecutable
if you brought intercept evidence into play", or "No,
this is a case that cannot be prosecuted without jeopardising
legitimate security interests" and, therefore, it would be
appropriate for your control orders?
Mr Clarke: I am not closed to
looking at any system which (a) would give better quality decisions
and (b) would give more reassurance about what might be seen as
the untrammelled power of the Home Secretary. There are a number
of things I would like to just put into consideration. Firstly,
nobody, least of all me, has suggested an untrammelled power for
the Home Secretary in this area. The judicial review process is
there, and would be there in the proposals that we have got, would
be tested and would allow issues to be tested in court. That is
from the point of view of the individual. The second consideration
I would like to put into the equation is that I do think that
there is an issue of national security which is different from
the issue of the rights of the individuals who are there. They
are not the same thing. Judges, quite rightly, are concerned to
preserve and defend the rights of individuals who are in their
courts, to deal with them properly. They do not have the responsibility
of making judgments on national security questions. It seems to
me that somebody—I leave in the air who for a second—has
to make a judgment about what is the national security issue that
is there. That is different from the rights of citizen one, two,
three, four or five—I deliberately avoid letters to avoid
confusion with other cases. Somebody has to make a national security
judgment and I contend that individual ought to be an elected
politician answerable to the House of Commons, ie the Home Secretary
or other senior government ministers in those circumstances. I
think that is the right way to proceed. Of course, when the government
minister makes that judgment, the Home Secretary in this case,
he or she has to be properly advised and that is where I think
on the processes that you have just described I am certainly prepared
to be flexible about looking at how one can address some of those
issues. Anything which took away from the key responsibility of
an elected government minister to take the decision about where
the national security interest lies would be a derogation of responsibility
which would be mistaken.
1 See Ev 20. Back
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