Examination of Witness (Questions 20-39)
8 FEBRUARY 2005
RT HON
CHARLES CLARKE
MP
Q20 Chairman: Whilst saving for the moment
the argument about national security interest, it would be better,
would it not, if you could show that you had done everything you
can to enable as many cases to be prosecuted as can be, even if
not all of them can be, and, secondly, to have a procedure that
would counter any suspicions that national security was being
used as a substitute to having a decent body of evidence?
Mr Clarke: I agree with both of
those points. As far as the first is concerned, and I have said
and I will repeat, I am absolutely ready to look at ways in which
we can do better in getting cases to prosecution. If I criticise
myself at all, which is very rare, I do so in my statement to
the House for not sufficiently emphasising my commitment to that
because it gave rise to some of the impressions you have just
described. Secondly, I do think that it is important to put procedures
in place which give confidence, as you say, that these issues
are being properly considered in the round. I just want to make
one other point. Do not believe that these issues are not very
fully considered in the round, including with legal advice and
proper assessments of what the position is there. Obviously the
security issues are considered by the security services but also
the legal issues, the prosecution issues and so on, are very,
very fully considered. I would accept the injunction from the
Committee that we ought to do more in that area and that is a
perfectly fair point to be made, but I do not accept the implicit
criticism, not so much in your question but in some of the public
debate, that these issues are not very properly and roundly considered
before the Home Secretary of the day makes a judgment.
Q21 Chairman: To summarise where we have
got to, Home Secretary, you are prepared to look at different
and clearer processes between the initial advice and taking a
decision to issue a control order, you are not at this stage prepared
to, as it were, delegate the decision on the control order to
another body.
Mr Clarke: That is correct.
Q22 Mrs Curtis-Thomas: You said earlier
that you were looking to extend the anti-terrorism legislation
and you also referred to the fact that there were 70 individuals
who are awaiting trial against that particular piece of legislation.
The extension that you are considering, how many individuals who
we are not currently able to prosecute against the anti-terrorism
legislation might be included in future prosecutions if we extend
the anti-terrorism legislation as it currently stands?
Mr Clarke: It is very difficult
to give a true estimate of that. I think there is a case. Lord
Carlile suggested some and there would be others in circulation
of extension to the legislation which could make a difference
in this area, which is why I am considering it.
Q23 Mrs Curtis-Thomas: Is it a small
number, Home Secretary?
Mr Clarke: I would say it is a
very small number, yes.
Q24 Mr Taylor: First of all, Home Secretary,
you said a moment or two ago that you are not a great fan of the
adversarial system and you are prepared to look at other—
Mr Clarke: That was simply to
provoke the Members of the Committee.
Q25 Mr Taylor: You have provoked me favourably.
It would be a massive change of culture, I put it to you, to move
away from the adversarial system in the law courts. It might be
a change in which I would support you from the backbenches, but
you are going to have a lot of resistance from a lot of vested
interests, are you not?
Mr Clarke: Absolutely. I would
not even be so nasty as to call them vested interests, I would
call them principled lawyers, if that is not a contradiction in
terms. Joking aside, the fact is that there are very genuine issues
in any changes of this kind which are absolutely enormous and
I would not venture down that path without going into very
detailed consideration because, as you said, there are massive
cultural changes involved and I do not think it would be very
intelligent for me in an important though narrow area of law to
try to bring about a change which undermined the whole basis of
the legal system in this country. That is why my comment was a
provocation rather than a response or an intervention. There are
very serious issues here because the European Convention and so
on has been manufactured in the context of many other different
forms of legal system rather than our own and that is something
we have to take into account as well.
Q26 Mr Taylor: Not long ago in your evidence
to this Committee, Home Secretary, you mentioned the person of
Lord Carlile. You are probably aware of the fact that he has suggested,
and I quote, a new offence of "acts preparatory to terrorism"
upon which that point could be tried, a criminal trial could be
brought on that offence. I am told that there is a similar offence
in the French jurisdiction and has been for some time where, under
examining, magistrates may detain a suspect for quite long periods
as long as there is a valid case against them. Do you think there
are any useful lessons for us to learn from that?
Mr Clarke: I think there are and
I do think we need to think about Lord Carlile's suggestion carefully,
which is indeed what we are doing. I have been briefed on the
comparison with France and it is the case that France has extensive
counter-terrorism powers in place, primarily as a result of dealing
with North African terrorism, and the French penal code has been
amended on numerous occasions over the last 15-20 years to deal
with terrorism offences. There, terrorist offences follow a special
form of legal proceedings in which the nature of the investigation
is centralised but a prosecution and trial under a sole jurisdiction
is made up of specialised judges whose competence extends across
the entire country. Obviously this is a different system from
the type of system that we have in place here and would require
a very substantial change. I think what I would say in summary
on this is I do not think it is realistic for us to think about
trying to tear up by the roots the fundamentals of our system
and switching to another country's system; I do not think that
would be the right way to go. I do think that it is perfectly
feasible for us to look at extending different offences, such
as the acts preparatory to terrorism offence, but I should say
whatever we do in these areas does not deal with the Law Lords'
judgment because the fact is that we have to renew the Part 4
powers by 10 March if we have not got other legislation in place,
and by definition putting through legislation that even extended
the anti-terrorist powers in this way would be a much longer process
and would be something, I would have thought, for consideration
in the next parliamentary session rather than this one, but we
are actively looking at that.
Q27 Chairman: You must be a little bit
jealous of your French counterparts who can lock people up for
four years without trial.
Mr Clarke: Actually, I do not
get any kind of excitement from that type of activity, Chairman.
I met my French counterpart at the JHA meeting, the Justice and
Home Affairs Ministers' meeting in Luxembourg last week. I do
not think I do feel very jealous actually because I think the
liberties we have got in our country are preferable to those in
France, at the risk of being provocative yet again.
Q28 David Winnick: On the control orders,
Home Secretary, you are meeting the opposition, I read somewhere,
on the 17th of this month, is that correct?
Mr Clarke: That is right, yes.
Q29 David Winnick: The meeting will be
between you and your opposite numbers. Is the Prime Minister involved
as well?
Mr Clarke: I will tell you the
history of this. Before I made my statement to the House of Commons
last week or the week before, I decided to offer a briefing to
the opposition parties at a time long before, so the night before
I briefed the Conservative spokespeople both in the Commons and
the Lords, and also the Liberal Democratic spokespeople both in
the Commons and the Lords, to explain what we were doing. The
reason I did that was I wanted them to have the chance to consider
carefully what I was saying so that they were not bounced into
a response of any kind. I offered a similar briefing to the Leader
of the Opposition and he declined saying that he was happy for
me to brief the Shadow Home Secretary. In questions subsequently
the Leader of the Opposition asked the Prime Minister if he would
meet and the Prime Minister, of course, agreed, as he rightly
should have done, and that meeting has now been fixed for Friday
the 17th. Also, since then the Leader of the Liberal Democrats
has asked for a meeting which will also take place on Friday the
17th. The Prime Minister will conduct both of those meetings.
I will be present at both of those meetings. I do not know what
the rest of the cast will be for the meeting either on the Government
side or on the Opposition side. I am glad both meetings are taking
place. I do not think these matters are matters for party political
badinage, they are serious issues which are there and I think
it is perfectly appropriate for those meetings to take place.
Q30 David Winnick: Thursday the 17th?
Mr Clarke: No. I beg your pardon
if I have got the date wrong. It is the Friday, I do not know
the date.
Q31 David Winnick: Not to worry. What
do you feel at this stage of the possibility of reaching agreement
with the two Opposition parties?
Mr Clarke: I will tell you what
I really feel about this. I feel that there is goodwill with the
leadership of both the Opposition parties to try and find a way
forward on this issue. I do not have a sense that either of them
are trying to score party political points in this process; I
certainly would deplore it if they did. I think there are some
genuine doubts, firstly around intercept evidence and the issues
that Mrs Curtis-Thomas was raising, and about some aspects of
the role of the judiciary in the process, the points that the
Chairman was making, and I hope that in discussion we can offer
reassurances, but on the fundamentals of the need to have powers
in place to deal with threats of national security I believe that
there is a readiness to do that. There are some in the House who
do not share that view—to be fair, on all sides of the House—but
I do not think that extends to the frontbenches and I would be
very disappointed if the assessment I am giving you now candidly
proves to be wrong.
Q32 David Winnick: You touched on the
question of judicial matters, would you accept the core of the
argument of many, indeed myself for that matter, who do accept
that action is required in view of the threat, since I accept
there is an acute threat from terrorism to our country and to
our people, that the idea that you as Home Secretary, or whoever
may hold your post in the future, can detain people so long as
you can get the necessary order through the House of Commons or
through Parliament as a whole is unacceptable, there must be a
judicial process, and the Prime Minister on 2 February at last
PMQs said: "It is our intention to have a judicial process".
What sort of a judicial process do you have in mind?
Mr Clarke: The one that I floated
in the statement that I made to the House was judicial review
of the decision of the Home Secretary as with the current SIAC
process, so that would mean that the Home Secretary takes the
decision that the individual concerned is then entitled to appeal
that decision and there is then a set of hearings, either in closed
or open session depending on the nature of the evidence, and SIAC
decides to agree or not agree with the decision of the Home Secretary.
I think that kind of process is certainly a very significant judicial
part in the process and does give a very important check and balance
against the untrammelled power of the Home Secretary, as I said.
Others have suggested other ways of having judicial participation
in the process other than the one I have described. As I implied
in my answer to the Chairman, I am not inflexible about this,
I am ready to look at ways of achieving this in order to get as
much consensus as possible. My own personal sticking point is
that there does need to be an individual, and I argue that it
is the Government of the day, and in my case the Home Secretary,
who has to take account of the national security situation and
make decisions based on the national security of the country and
that is not simply a matter which can be passed to anybody else.
The Chairman correctly summed up my views in saying that I do
not think that responsibility can be derogated elsewhere.
Q33 David Winnick: But judicial review
would be included?
Mr Clarke: Yes.
Q34 David Winnick: Which was not quite
clear by any means when you made your original statement in the
House.
Mr Clarke: If that is the case
that is my fault. Certainly I sought to make it clear and my wording
in my statement did specifically state that we would have a SIAC
type process involved in that, but no doubt I was less than clear
in explaining it. I also think, by the way, it is very important
to have parliamentary scrutiny of what is happening and have a
regular process of parliamentary debate about what is happening
in these areas, whether directly in Parliament or with the help
of the Intelligence and Security Committee if that can assist
in the process.
Q35 David Winnick: What happened last
time, Home Secretary, was we had the debates because it was necessary
as part of the legislation which went through but it did not stop
the Law Lords coming to the conclusion which they did. Am I not
right, the only reason you are putting forward these new proposals
is because of the Law Lords' decision?
Mr Clarke: I would not say specifically
the Law Lords' decision. I am not disputing your central thesis
but I would say because of two Law Lords' perceptions which I
think were true and which we had to address. Perception one was
that there was an issue on the different set of regimes and treatments
for foreign nationals and UK Nationals, and I think we were criticised
for that in a way that was difficult not to acknowledge some truth
in the criticism and therefore establish a regime. Secondly, the
criticism that we were establishing a disproportionate situation,
so if we had any level of doubt about an individual who we could
not bring to court and prosecution, the only serious option was
full scale detention even though a sanction less than full scale
detention might well have been appropriate. The lack of proportionality
I thought was a well made criticism by the Law Lords which we
ought to deal with. Both of those criticisms, the discrimination
between UK and non-UK citizens and the lack of proportionality,
were substantive points with or without the Law Lords' judgment
but what the Law Lords' judgment did was bring them absolutely
to the forefront certainly of my personal attention and also that
of the state in a way that meant in my opinion we had to seek
to address them.
Q36 David Winnick: With the exception
of Lord Hoffmann it is true that the Law Lords, as you say, put
great emphasis on the fact that there was a distinction between
foreign nationals and UK citizens, and you have just commented
on that, but would you accept that people who are opposed to foreign
nationals being locked up without proper court decisions, being
found guilty, would find it even more obnoxious if UK Nationals
were subject to the same type of restrictions as you are proposing
in the control orders?
Mr Clarke: I do accept that and
that is why I said in my statement, and I tried to be candid about
it at the outset, that this did represent a significant increase
in the powers of the state in relation to UK citizens but the
only choices that seemed to me to exist were either not to extend
those powers to UK citizens, in which case we could not deal with
the discrimination argument as there were real issues of threat
that were present, or to say that we would continue to maintain
a distinction between how we dealt with foreign nationals and
UK Nationals, which the Law Lords had been very clear they did
not think we could do.
Q37 David Winnick: Just one or two questions
very briefly on the practical side of this. As regard those who
would be virtually under house arrest, do you consider there would
be many who would not be able to leave their actual place of abode?
Mr Clarke: No, I do not. I have
been careful not to use the phrase "house arrest" because
there is a range of measures which have been talked about from
not being able to use mobile phones to not being able to use the
Internet to not receiving visitors, a whole range of different
measures which can be used, to have satellite followed tagging
and so on, a whole system of measures that can be used either
individually or in combination. If we are talking at the upper
level of use of those measures, I think we are talking about a
very small number of people indeed, but they are dangerous people
who we would be putting our security at risk by simply letting
them go loose completely untrammelled.
Q38 David Winnick: Home Secretary, you
made much, as your predecessor did, that despite all the controversy
over the previous restrictions which led to Belmarsh, et cetera,
despite what was said at the time, it amounted to 17 and then
less than that. Is there not a danger that if you are going to
include UK Nationals who are considered by the security services
to be a risk we are talking of much larger numbers?
Mr Clarke: No. As you say, only
17 people and for those 17 it is obviously important, but nevertheless
only 17 people involved in that particular approach. We are not
talking about significantly larger numbers at the upper level
of the control order. I need to come back to this proportionality
point again. The fact is it is quite possible by using a range
of control orders to restrain people's ability from being able
to plot and plan terrorist activities without going to the point
of deprivation of liberty, and I think that is a preferable thing
to do if one can get to that position. We are not in that position
today because we do not have the legal power to do that, so it
is a case of either full detention or, as I say, perhaps a warrant
to phone tap or something of that kind, something fairly low level.
I think that the proportional aspect of where we are enables us
to deal with the situation in a much more balanced way in getting
this difficult relationship between national security and individual
liberty on to a balanced footing.
Q39 David Winnick: Is there a danger
it could go over 100 in number?
Mr Clarke: I think that is very
unlikely.
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