Examination of Witnesses (Questions 20-39)
RT HON
CHARLES CLARKE
MP
13 SEPTEMBER 2005
Q20 Mr Benyon: Obviously
there are going to be cost implications of any increased security
measures. What, in your estimation, has been the cost to public
funds of the security measures taken in London since the July
attacks? Are the police and the other emergency services adequately
resourced to tackle the increased level of threat?
Mr Clarke: There have been very
particular costs that have been incurred in relation to that.
We have discussed it with the Met and we are discussing in government
to what extent we can meet those particular costs. We estimate
that the costs before the 1 September incurred by the Metropolitan
Police Service in combining the resources diverted from other
activities, the opportunity costs and the additional costs—cash
costs, for example, support and extra overtime—are of the
order of £60 million and we are addressing that in discussion
with the Met.
Q21 Mr Benyon: Do you
think you will be bringing Supplementary Estimates before the
House to cover the increase cost burden?
Mr Clarke: We are discussing precisely
how we can deal with that situation. I doubt actually it will
need Supplementary Estimates, but I need constitutional advice
on whether I am right about that. We certainly acknowledge the
thrust of the point you are seeking to make in your questioning,
which is that extra costs were incurred by the Met, and by others
actually, and it is the obligation of the Government to try and
deal with those exceptional costs. Obviously all the emergency
services have an element in their budgets for resilience against
any particular attack, including this; but the scope of this was
very, very great and that is why we need to address this specifically.
Some of the issues and the costs incurred can be dealt with by
the Met's own reserves; some may need a further advance from government
but that is precisely what we are discussing at the moment.
Q22 Gwyn Prosser: Home
Secretary, as you know, we are not able to discuss the details
of the shooting of Mr Menezes here this morning, but there is
a public concern about the background to that incident. Can you
tell us under what legal authority armed police officers can use
lethal force in this country? In the case of police command, who
actually can authorise that form of action?
Mr Clarke: As you say, Mr Prosser,
I do not want to comment on the detail of this because of the
sub judice position; and also, as I have said, because
I do not want to challenge the IPCC's independence into looking
into these particular areas. At the level of generality, the answer
to your question is that the use of lethal force by police officers
is subject to the same requirements as for any other use of force.
The basis of law in it is the Criminal Law Act 1967 which provides
that the police may use such force as is reasonable in the circumstances
to affect an arrest or to prevent crime. In addition the Police
and Criminal Evidence Act 1984 also provides for the use of force
when necessary in exercising any of the powers provided under
the Act. When circumstances demand it, reasonable force may include
lethal force. Obviously a very major decision but that can be
the case. Within the general framework of the law [which I have
just described] the Chief Officers must have regard to the Statutory
Code of Practice on the police use of fire arms and less lethal
weapons. That Code is made under the Police Act of 1997. The Code
deals with the provision of a nominated senior officer in each
Force to maintain standards and take the lead in relation to operational
policy and practice in respect of weapons requiring special authorisation—which
is any weapon other than those routinely issued to patrol officers'
self defence—and general requirements for authorisation
procedures, planning for fire arms incidents and so on. That Code
of Practice, which is statutory under the law and was in front
of this House, is backed up by a more detailed ACPO manual of
guidance which covers the more operational aspects of the use
of firearms. You asked about the chain of command: the Statutory
Code of Practice points to "the need to appoint an officer
of at least Assistant Chief Constable level to be responsible
for taking the lead in operational policy and practice in relation
to fire arms within the Force. The level at which authorisation
can be given may vary in relation to the kind of weapon, the urgency
of the situation and so on. Officers responsible for planning
operations where the use of force is a possibility should do so
to minimise recourse to force. Where weapons have been deployed
continuing judgments are needed by all those involved as to whether
their actual use is reasonable and necessary in the circumstances".
I am sorry to have read out a brief on this, Mr Prosser, but I
thought you might ask about the legal basis and I wanted to make
sure I put it accurately on the record.
Q23 Gwyn Prosser: Does
that answer imply that there has been no change in policy in this
regard, or in operational instructions or guidance in this regard?
Mr Clarke: No, it does not. Tactics
continue to evolve in response to the threats that we face. An
example, which you imply in your question, is how to deal with
the threat of suicide bombing for example. I want to make a general
point here about this. The tradition of this country (I think
rightly) has been that operational policing is the responsibility
of Chief Constables and of the police rather than of politicians,
and that is for two essential reasons, in my opinion: first, is
that I think it would be a very, very bad state of affairs indeed
if ministers such as myself were in a position to try and second-guess
the operational judgements of Commissioners of Police or Chief
Constables in the particular issues that they face. In countries
where there is a lack of clarity about that relationship I think
that is damaging operationally and I have always defended (and
did when I was police minister for the 2001 Election) very strongly
the proposition that operational responsibility for policing must
lie with the police, including these matters; secondly, I think
one of the dilemmas the police have, and we as politicians have
as well, is that it is not desirable in some operational circumstances
to reveal to public debate what the operational issues are for
the way in which policing operational decisions are taken. Of
course, the seriousness of the question you have just raised with
me, Mr Prosser, the question of lethal polices in those matters,
does require public debate. Perhaps I should say that once the
IPCC report is concluded I will look at this question, and maybe
the Committee might want to look at this question, as to how we
proceed in relation to some of these issues. I would be very loathe,
even in such consideration following the detailed inquiry the
IPCC is carrying through, to get to a state of affairs where the
operational responsibility for policing did not remain with the
police.
Q24 Gwyn Prosser: Do you
not think there must have been a flaw in the system which almost
required a particular incident to occur before parliamentarians
or even the general public were aware that a new policy or a new
operational piece of guidance was in place?
Mr Clarke: I do not accept that,
as a matter of fact, no. I am being rather guarded in my wording—the
matter is before the IPCC and I am not going to comment on that—but
nobody should forget the circumstances in which events took place.
What I do think is that the police have a duty to continually
update their operational practices in the light of varying threats
which arise. I think that is correctly carried out by the police,
and it should do so. That is what is being done in this area and
I think that is how it should be.
Q25 Gwyn Prosser: Do you
think it is fair to describe the present policy as a "shoot
to kill" policy? Are you completely comfortable with it?
Mr Clarke: Not at all. I think
shoot to kill is not an appropriate phrase or description to use.
I do not really like the phrase "shoot to protect".
In my answer to you I put "shoot to protect" in quotation
marks rather than accepting it. The fact is, the purpose of operations
involving firearms is the intention, in appropriate circumstances,
to bring an end to an imminent threat to life or serious injury.
Tactics are targeted at that and ensuring it is done quickly and
with certainty. Where a firearm was actually discharged of course
death may result and has resulted absolutely tragically, but that
is not the objective. The objective of the policy is not to go
around killing people. The objective of the policy is to protect
the public against any particular threat of criminality that can
arise; and that arises whether you are talking about a terrorist
attack, which we were talking about in London, or other circumstances
in which the police use arms. The police have no desire to use
arms. The police sometimes need to use arms better to protect
the public. They are faced with dilemmas of this kind all the
time. That is why when people say "shoot to kill" I
think that is a quite wrong use of language.
Q26 Mrs Cryer: Home Secretary,
I am sure you are aware there is a great deal of public disquiet
about the so-called "shoot to kill" policy. You are
saying there is not, but if there is a shoot to kill policy like
suicide bombers it completely circumvents the criminal justice
system. Can I take from what you have said that what happened
here in London could have happened in West Yorkshire, which is
my area? Is it across the board? Can any police authority look
at this sort of situation and rule that it is possible for police
officers to use lethal force?
Mr Clarke: Every Chief Constable
has the operational responsibility to take the decision—for
example in West Yorkshire or any other force—which they
think will best protect the people who they have the job of protecting.
In taking that decision, the Chief Constable has to have regard
to the Statutory Code, which I referred to earlier, and to the
ACPO guidance which is established; but the authority does not
thereby remove from the Chief Constable to do what he or she thinks
is necessary in order to protect the people in his or her area.
While I understand completely the points you are making, Mrs Cryer,
I think I just need to say in the hypothetical case of a West
Yorkshire attack, for the sake of argument, that if there were
suicide bombers in West Yorkshire who were genuinely believed
to be threatening the lives of dozens or even hundreds of people
in a great West Yorkshire city, I think the obligation on the
Chief Constable in those circumstances should be to do their very,
very best to protect the citizens of West Yorkshire against such
an attack. Of course they are highly accountable, Chief Constables,
for their decisions in those circumstances, and it is of course
possible that terrible things happen—that is a circumstance
which can of course arise. In the great balance of things I do
think we ought to acknowledge that Chief Constables and the police
leadership have hard decisions to take in facing this kind of
threat. That is why we are so determined to eliminate this kind
of threat. The problem referred to by the Chairman in his question
earlier on remains the case—it will be possibly some considerable
time before we can say that this kind of threat does not exist.
Q27 Chairman: Was it your
job to order the IPCC's involvement in the inquiry and, if so,
why apparently did you not order that immediately on learning
of the shooting—it was some time before they became involved?
Mr Clarke: It was not my job specifically
to order the inquiry, Chairman, because the IPCC has it is own
procedures in terms of handling referrals. Again, I anticipated
you might ask a question of this kind and, if you do not mind,
could I set out the process that exists because I think it is
quite important. The handling of complaints or conduct matters
and referral to the IPCC are governed by the Police Reform Act
2002 and the Police Complaints and Misconduct Regulation 2004.
Certain categories of complaint or conduct matter are required
by statute to be referred to the IPCC. That is a whole series
of issues which are required to go to the IPCC. There is also
a new provision under the Serious and Organised Crime Act where
police forces are required to refer all deaths and serious
injury cases to the IPCC, even where there is no complaint. Previous
to this order and this provision it was voluntary reference by
police forces. A police force is required by statute to refer
a case to the IPCC by the end of the next working day following
the incident. Upon referral of a case to the IPCC, they will decide
how the case will be handled under the set of conclusions which
for brevity I will not go through again. If the Committee is interested
I will be happy to drop a short note on the IPCC procedures rather
than repeat it here.[1]
The point I want to emphasise is that it is not a matter of discretion
whether these things are referred to the IPCC. The reason why
I have been so angry over the summer with the various speculations
that have gone on around this inquiry is that (as you will know,
Chairman, from your own personal experience) the determination
to struggle to establish an Independent Police Complaints Commission
was not straight forward and was not clear. Here with this massive
test for the IPCC, and for everyone else, I think it is critically
important the IPCC is entitled to conduct its inquiry in a balanced
way and draw its conclusions and publish its conclusions in a
balanced way and for everybody, including the Committee and myself,
then to look at the conclusions.
Q28 Mrs Dean: Home Secretary,
on 24 August you announced changes to broaden the use of exclusion
and deportation powers, with a new list of "unacceptable
behaviours". What gaps in your existing powers are these
changes intended to fill? How do you respond to those who argue
that these powers are too sweeping, particularly given the very
broad definition of "terrorism" in the Terrorism Act
2000?
Mr Clarke: Essentially the Home
Secretary has always had the power to exclude people from this
country on the basis of conduct which would not be conducive to
the public good. It is a power which has been exercised in certain
circumstances. It can exist, for example, in relation to national
security issues; it can exist, for example, in relation to criminality.
It has not traditionally been used, however, in cases of unacceptable
behaviours of the types which I described. That is why I said
to the House of Commons in my statement on 20 July that I believed,
despite the fact that that power had not been used in that way
because of concerns about free speech and so on, I now intended
to consult on how to use it. The fundamental reason for that change
was that while my predecessors had been of the view that the risk
to free speech was greater than the security that could be offered,
I felt that the events of 7 July and, as it turned out, 21 July
(I did not know that when I made the statement to the House) led
to a state of affairs where we ought to define that more widely.
I was, however, acutely aware that these areas were extremely
controversial and difficult to resolve. I said although I wanted
to move on a rapid basis I would produce a draft list of unacceptable
behaviours for consultation over a very short consultative period,
only two weeks in August. I did do that; I did consult for that
period, including with people from a number of communities, including
the Muslim community. I took account of a number of representations
that were made and changed the draft list in light of those representations
to try and tighten it to try and deal with some of the concerns
people might have had; and thereby published the list on 24 August.
In answer to the concern which you rightly reflect—and saying
people raised the question: is this too far?—I fundamentally
think it is not too far. If there are people, who remember are
not necessarily entitled to be in this country, who are abusing
this country in order to be able to prosecute terrorism in any
way, I think it is perfectly reasonable for me to say that I will
use my powers to prevent these people being in this country, and
that is what that list seeks to do.
Q29 Mrs Dean: Is there
a danger that people who do not pose a threat to the UK but simply
voice dissent about oppressive regimes overseas could be caught
by the new provisions?
Mr Clarke: I do not think so.
Firstly, the guidance is to me, the Home Secretary of the day,
as to the circumstances in which I would use these powers; so
there is always the decision of the Home Secretary to take account
of the precise circumstances in which it is made. Secondly, I
think that the Code of Unacceptable Behaviours, which I have set
out, does really talk about the ideology and the threat to the
UK which is implicit in that ideology of people in those circumstances.
I know the argument you have just reflected is made by some, but
I do not actually accept it. I do not think it is a threat to
free speech about making changes in countries throughout the world.
Q30 Mrs Dean: Do you consider
it right in principle that such changes to powers should be introduced
without formal consideration or approval in Parliament?
Mr Clarke: I do think it is right
in principle in these cases because we faced a very particular
set of circumstances. I think what was right in principle, if
I can put it like this, was that I said to Parliament I was going
to do this, which I did in a statement on 20 July. I set out a
procedure which I was going to follow. I think I followed that
procedure and operated quite directly through that. There was
no change in the law proposed in what I was doing. There was a
change in the way I intended to conduct my responsibilities under
the law. I informed Parliament of it and then very publicly publicised
precisely what I was going to do. I feel absolutely that I went
through the correct procedures. Of course, if this Committee or
any others wanted to make the comment that I had done it wrongly
in a certain respect, or this was not right, I would listen to
those concerns; but I would robustly defend that I did it in the
right way and that the conclusion was right.
Q31 Mrs Dean: The focus
of the Government's concern is on foreign radicals. Does this
reflect intelligence advice that the chance of bombings in Britain
would be greatly reduced if they were not here? If so, does the
Government accept any responsibility for allowing them to operate
in this country for so long?
Mr Clarke: It does not reflect
specific security service advice in relation to the way you put
the question. Do I think it would have been a good idea to have
done this a lot earlier in any respect? I have to say that this
balance of the judgment between free speech, individual liberty
and national security is a difficult one. I make no criticism
of either myself in the past or of my predecessors in saying that
it was very important to protect absolutely, as it were, the free
speech of certain individuals however offensive and terrible what
they were saying was. I do think that the events of 7 July, with
the implication that there are individuals ready to conduct these
kinds of acts who had been subject to the kind of influences we
are describing, put a whole new angle on the whole of this debate.
I think I would have been blinkered as Home Secretary had I not
faced up to that new reality and made the proposals which I have.
Q32 Chairman: Home Secretary,
while there were sceptics about the threat you (I know because
you said so in the House) were convinced that something like the
bombings would happen at some time. It is a little difficult to
understand the argument that says we had to wait until so many
people were killed before we took this action if you, the Prime
Minister and others, were convinced that this sort of action was
going to be inevitable. Could you expand a bit more on your answer?
Mr Clarke: With respect, I think
it is a slight caricature of my argument to say that I was suggesting
let us wait for a disaster and then we can do something. I do
not think that is entirely what I was suggesting. What I was saying
was that the events of 7 July illuminated a certain set of issues
about the kind of threat that we were under and the kinds of people
who might bring those threats to pass. They heightened the question
certainly in my mind, but very much more widely, as to what it
was that brought these individuals to behave in these ways. It
seemed incumbent on me to try and answer that question and to
address it to the extent that we could. It is always possible
to say, "We could have done it differently in the past in
respect of A, B or C", and that is always the case; but,
as I have tried to indicate in previous answers to the Committee,
I do not believe there is any particular step where I could say,
"If we'd only had that in place that would have prevented
the 7 July". I do believe that an overall strongly protective
framework is necessary and that is what I have set about trying
to achieve.
Q33 Mr Winnick: Previous
governments as well as this one, Home Secretary, have been told
by foreign governments, including in the Arab countries, Egypt,
for example, that a number of terrorists as they see it have come
to Britain over the years and that the UK has become almost a
safe haven for such people. There is a general feeling that, like
with the previous government, serious warnings of such a kind
were not accepted by the government. What would be your response
to that?
Mr Clarke: I do not essentially
accept that. I think for some considerable time, some years anyway,
there has been a very determined effort to remove the idea that
the UK was a particularly positive place for people to live in
those circumstances. I know those allegations continue to be made
by some but I do not think they are sustainable. That said, a
particular concern of mine, however, Mr Winnick, has been the
speed with which some extradition issues have arisen and I think
there is a need to speed up our expedition processes which we
prefigured in the 2003 legislation on that matter and we are now
dealing with them much more effectively. If you ask some of the
governments, and I know you are very familiar with their approaches,
they will say that a part of their concern that you are reflecting
in your question was that we were not extraditing as quickly as
possible individuals that we needed to in those circumstances
and I hope that we are addressing that very actively at the moment.
The only other thing that I say in relation to this is that it
is very important to put the relationship with such governments
onto a much stronger footing, which is why the memoranda of understanding
which I have referred to are so important. Those people who argue
that such memoranda of understanding are not worth the paper they
are written on I think are guilty of what I have in writing called
some kind of latter-day colonialism in the way in which they approach
these governments, and I think we are entitled to say that we
are determined to work together with the governments of these
countries to try and sort these problems out.
Q34 Mr Winnick: Some would
say it is rather late in the day. Do you accept any criticism
for that?
Mr Clarke: Not on the "late
in the day" point, no.
Q35 Nick Harvey: Following
that point, the government says it may seek changes in the law
to reduce the chances of successful appeal against deportation
to countries that have practised torture. How workable is that?
Section 3 of the European Convention would still apply. Sweden
recently fell foul of it when it sent two asylum seekers back
to Egypt and they were tortured. The UN Special Rapporteur points
out that if we are having to seek these sorts of assurances it
shows that we perceive a risk. How much faith can we put in assurances
from countries which have had a history of practising torture?
Mr Clarke: First, I completely
reject the fundamental premise of your question. If you take the
Swedish case, which I discussed with the Swedish Minister of Justice
last Friday in Newcastle, the fact in that particular case, the
one which there has been wide publicity for, is first that there
is absolutely no proof whatsoever that there was abuse of the
individual concerned and certainly the Swedish and Egyptian governments
do not accept that. It is true that allegations of abuse were
made by relatives of the individual concerned at the early period
during which this was taking place. Secondly, and more importantly,
there was not in place a memorandum of understanding between the
government of Sweden and the government of Egypt on these cases.
There were various assurances that were given but they were not
at the level of an intergovernmental agreement. The fact is that
intergovernmental agreements should be taken seriously and I hope
the courts will do just that. As far as the UN is concerned we
are in correspondence with the UN Special Envoy in these areas
and will continue to be, but he points out in his correspondence
that these countries are signatories of the UN's own Convention
against Torture and that that is something that should hang in
the balance. In fact, he makes the argument (which I think is
not a consistent argument) that we do not need the memorandum
of understanding because they have already signed the UN Convention
against Torture which I do not myself think is a sequitur
in the argument which is intellectually respectable, although
I will, of course, discuss this with the United Nations, but I
know that the UN Security Council later this week (I hope sponsored
by all the permanent five members) will agree an anti-terrorist
resolution at the United Nations level. That is good news. Our
government has been very actively promoting that and the Prime
Minister will be addressing it later this week in New York and
that is the right way to proceed. I do not fundamentally accept
the point. The issue under the European Convention is whether
there is a real risk to an individual concerned in being returned
to a country where he or she might be subjected to torture or
abuse. That is a real issue. The courts have to look at it in
the balance. My argument is that if there is a memorandum of understanding
agreed between governments about individual cases that should
be taken seriously by the courts, and I believe the courts will
take that seriously.
Q36 Nick Harvey: Neither
the Swedish or Egyptian governments have been in any hurry to
acknowledge what had happened there but, unfortunately, as you
say, allegations continue. What were you getting at when you were
talking to your counterparts in Newcastle last week when you said
that we were coming under increasing pressure to withdraw from
the ECHR? What are the changes you want to see to the ECHR and
is there any sense that actually the problem is that British judges
are interpreting it differently from their European counterparts?
Mr Clarke: I do not think that
is the case. The pressure is a matter of simple observation. If
you look at the editorial columns of certain newspapers and the
statements made by certain politicians, there is a pressure to
withdraw in these circumstances. It is a pressure I reject. I
think the European Convention on Human Rights is a very important
guarantor of human rights and has also been a very important developer
and extender of human rights since its signature in 1948. What
I do believe, however, is that it is very important that in its
operation, both at the British level and at the European level,
the human rights of individuals who are being charged with particular
offences are considered side by side with the human rights of
those who have been blown up in tube trains and so on. I think
most judges accept that and I certainly do not believe that British
judges have been taking eccentric decisions in relation to this.
I think British judges have been taking perfectly correct decisions
as far as their interpretation is concerned. That is not to say
I agree with all the decisions taken by British judges but I do
not imply any kind of inadequate judicial standard for British
judges as compared to anybody else.
Q37 Nick Harvey: You are
not seeking changes to the Convention?
Mr Clarke: No, I am not seeking
changes to the convention. What I am arguing for, and I argued
this in a speech to the European Parliament last week and also
in Strasbourg and in Newcastle and Gateshead, is encouraging the
judiciary, the European court and all agencies to ensure that
the decisions that are taken take full account of the overall
position within the legal structure, and I think that is the right
way for us to proceed.
Q38 Nick Harvey: Do you
intend that any of the people who were detained in Belmarsh prison
and have subsequently been subject to control orders will be deported
under the new arrangements and, if so, how does that square with
your earlier assurance, for example, in the Commons in February
when you said that the control order regime at a level of less
than the deprivation of liberty would be sufficient to secure
those people, control them and prevent them from engaging in terrorist
acts?
Mr Clarke: The control orders
under which those individuals were did have the effect that I
described of preventing them from committing or engaging in particular
terrorist acts. There are issues about the operation of the control
order regime which Lord Carlile will report on at the end of January
next year and I have reported to Parliament at regular intervals
about that and will continue to do so. The only issue that arises,
however, is whether their presence in this country is conducive
to the public good. In my opinion it is not conducive to the public
good and that is why I took the decision I did in terms of proposing
their deportation, but then the issue arises as to precisely how
that will operate in the way that we have previously been discussing.
Q39 Chairman: Home Secretary,
we are grateful to you for providing to us the paper from Sir
Andrew Turnbull that went to the Cabinet about relations with
the Muslim community, although it did happen to be leaked to The
Observer before a committee of the House of Commons could
receive this unrestricted paper. Earlier this year this committee
had an inquiry into terrorism and community relations. The evidence
that your department submitted was very different in tone from
the private advice that the Home Office and the Foreign Office
gave to the Cabinet and that private advice talked about factors
which may attract some to extremism, including anger, alienation
and activism. Can I ask why there was such a difference between
the public Home Office analysis of the problems and issues arising
in the Muslim community and what was being said by the Home Office
to the Cabinet?
Mr Clarke: Because there are differences
in assessment at different times and in different circumstances.
I do not think that is an unreasonable thing to say. My view,
as I said in answer to Mr Malik earlier on, is that we have to
work a lot harder as the Home Office on developing our relations
with the Muslim community and understanding and working better
together and that in my opinion is a course of action that we
should follow. There is a whole series of fora for having the
discussion which you are quoting from the two different documents.
I do not see any inconsistency in the way that you suggest but
maybe I am missing the point that you are trying to put to me.
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