Select Committee on Home Affairs Minutes of Evidence

Examination of Witnesses (Questions 20-39)


11 OCTOBER 2005

  Q20  Mr Winnick: If I defended it and made public statements at the time, say 20 years ago, there would have been a danger possibly.

  Mr Clarke: That takes me to the second part of the answer I was going to give to your question originally, which is a point which I think is not sufficiently taken into account. The change which has happened in the world since you and I were involved in those activities is absolutely immense. You go right through the whole continent of Europe, you have Greece, Spain, Portugal moved from fascism or military dictatorship, Southern Africa, South Africa moved from apartheid regimes to colonialist regimes, the whole of East and Central Europe moved from totalitarian regimes to some form of democracy, the same is true in Latin America, Central America, and so on. It is a fantastic transformation of the world that has taken place over that time and I believe that precisely the conversation you and I were having then was in the context of the 1945-89 Cold War where a whole set of issues arose of precisely this kind. My argument is we are moving and have moved to a different political era and that means that in this different political era legislation of this kind gets an entirely different kind of attack. Let us remember the kind of attack you were talking about then was around clearly defined political objectives, what we are dealing with now is a nihilist organisation which has—

  Q21  Chairman: Mr Clarke, can you stick to answering Mr Winnick's question because we are   not talking about just a nihilist terrorist organisation, we are talking about any expression of support for political violence aimed at changing Government policy in any context. We cannot as a Parliament look at this legislation just with al-Qaeda in mind, we have to look at it under all the circumstances under which somebody should be prosecuted. I think Mr Winnick would agree with me you appear to be saying the world has moved on, there are never any circumstances now where political violence of any sort is ever justified and, therefore, we are right to prosecute anybody who ever advocates it in any other circumstances. That is a huge claim about the state of the world today.

  Mr Clarke: It is, but I am sorry if you felt I was not answering Mr Winnick's question, I was trying to do so. I cannot myself think of a state of affairs in the world today where violence would be justified as a means of bringing about change. Indeed, I would argue that the biggest changes in recent times—taking the Ukraine, for example, recently—have come through political action, mass action with relatively little loss of life in that process. Those who argue that terrorist violence is the means of making change anywhere I think are unjustified.

  Q22  Mr Winnick: Just one final point if I may, Home Secretary, referring to what Mr Malik said. If someone is prosecuted for supporting violence by the Palestinians against the post 1967 occupation—it so happens I am totally opposed to suicide bombings, as I am against the Israeli violence—is there not a danger of bringing the law into disrepute where when the court case takes place, with all the safeguards, the actual prosecution occurs, someone argues that in all the circumstances, not that I would necessarily by any means accept the argument, but like South Africa under apartheid so Palestinians fighting against the post 1967 occupation have a right to violence and therefore the court would turn, to a large extent, however much a judge may try and avoid this into a disputed political argument about the Palestinian/Israeli conflict? All that I am saying to you really is that perhaps this is a matter that should be looked at again.

  Mr Clarke: The Palestinian Middle East conflict is a classic exception to what I said earlier, and what the Chairman thought was too big a historical sweep where progress has not been made in that sense. Even in that area, as you have just indicated yourself, I do not think that suicide bombing or terrorist violence is the means of making change in that area, I think exactly the opposite is the case in fact, and I think those who seek to encourage—I come back to that word again—terrorism to make change in the Middle East are wrong and should not be protected.

  Q23  Chairman: I am rather abusing my position as Chairman but you just said a moment ago you could not think of a single circumstance in the world where violence would be the right way to promote political change. Two years ago this country invaded Iraq in order to promote political change. I do not understand, that was presumably the war to end all wars because there has never been a circumstance where it would be justified to advocate invading Iraq to change the government, yet advocating political violence to change a government is an offence under the 2000 Terrorism Act.

  Mr Clarke: I well know your position on the Iraq war, Mr Denham.

  Q24  Chairman: My position is neither here nor there, it is what the law says, Home Secretary.

  Mr Clarke: No, but it is a question you are raising for me, and the issue of the Iraq war was following the United Nations Security Council position the acts were then taken to try and change the situation in pursuit of the United Nations. I do not know if that is an argued point but it is in fact the situation. Now it is not terrorist violence, this is about terrorism not about violence used in the way that you describe.

  Chairman: We may want to look more closely at the definition of terrorism that is in our current law at the moment. I want to bring Mr Malik back in.

  Q25  Mr Malik: Home Secretary, are you confident that Clause 1 is compatible with the right to freedom of expression set out in Article 10 of the European Convention on Human Rights?

  Mr Clarke: Yes, I am. I am confident that this Bill as a whole is compliant with the European Convention on Human Rights, all of its clauses, and we have looked at that in detail. That is why I have given my certificate on the Bill to that effect.

  Q26  Mr Malik: How do you assess the likelihood of this being challenged successfully in the courts?

  Mr Clarke: Very low. I never rule out the possibility of lawyers challenging things but I think any challenge would be very unlikely to be successful. If I may say so, Mr Malik, the process of a Secretary of State deciding to state that a Bill is or is not compliant with the European Convention on Human Rights is a process which is both taken seriously, as you appreciate, but also substantially advised by legal opinion in a variety of different areas. On that basis I have authenticated this Bill as compliant and I think a challenge in the courts would be very unlikely to be successful.

  Q27  Mr Clappison: Can I move on to the question of glorification because in the Bill as it was originally published you proposed to make glorification per se an offence under Clause 2. That excited a lot of comment, as I am sure you are aware, and now you have substantially changed your proposals. Clause 2 has disappeared and been subsumed under Clause 1, and we do not have to worry any more about historical events from more than 20 years ago or whatever, it is simply now a question of being part of Clause 1, and to be an offence the person who makes the statement has to know or believe, or have reasonable grounds for believing, that people will act as a result of it. Do you accept that is a very substantial circumscription of your original proposals?

  Mr Clarke: I am damned if I do and damned if I do not, Mr Clappison. I do accept it is a significant change. It is a change I gave in a considered way for the reasons that you implied. When I first wrote setting out our proposals there was a wide range of criticism that the clause around glorification was drawn in such a way that it might lead to difficulties for the courts interpreting what the meaning was in that area, so I reconsidered and decided to publish the version that you have in front of you. I think that is the rational way to make law and however I go about it that always gets described as a u-turn et cetera. The process that I discussed both with the leaders of the opposition parties and with others was about having a process through September where we could have some kind of reasonable discussion about what we are proposing in these areas. I said at the beginning, and people doubted it but it was not true, that we would never change what we said. I think I have demonstrated that we are ready to listen to serious argument and try to address it in a proper way.

  Q28  Mr Clappison: Do you still think that there might be a problem with the interpretation of the word "glorify" which is not defined in the draft Bill, or are you happy with that?

  Mr Clarke: I am happy with that. It is obviously the case that it will have to go through the courts and the courts will have to make their decisions about what happens. I believe that we will succeed in achieving a situation where the case law as it builds up on this with, I hope, a very small number of cases will lead to clarity in this area. I agree that it is a relatively new word for the law but I do not see any reason why that is impossible for it to be dealt with.

  Q29  Mr Clappison: Given that you are showing preparedness to think about proposals where they excite strong comment, are you prepared to think again about the debate which we have just been having about the role of political violence and the debate which you have just had with the Chairman on that?

  Mr Clarke: Certainly I am prepared to think about that. My whole stance both on this legislation and on previous terrorist legislation I have dealt with in this House, both in 2000 and 2005, has been really to have a discussion about these things and if we can get to better definitions I am absolutely ready to go down that course. Although I do not think I would entirely agree with the Chairman and Mr Winnick on some of the issues around that, I do recognise it is a real point and if we can find a wording which would be more effective in these areas then I would be ready to do that.

  Q30  Mr Clappison: I do not want to revisit the whole of that debate but the point the Chairman was making was there is a blanket prohibition on political violence against any foreign government in any circumstances and whilst you have referred to some circumstances there are other ones in the world today and we can all think of examples of them. My point is you are making life here very difficult for the courts, are you not?

  Mr Clarke: My aim is always to make life easy for the courts and I hope this legislation will do that. There are judgments to be made in all these things. You are quite right that by implication—I know this is not your argument—we can simply say, "Let's not legislate in this area at all. Let's say free speech means that anybody can go around inciting people to blow up buses if that is what they want to do and that is no problem for us as a society". I do not accept that. If you do not accept that then I agree it is an obligation to make a proposal, which is what we have done, and I agree the consequence of making a proposal is difficult points of definition. If I am asked am I ready to listen to arguments in getting to a better definition of what we are trying to achieve, the answer is yes I am. If I am asked am I ready to go down the course of saying we should just forget this, it is all too difficult, I do not accept that.

  Q31  Mr Clappison: Do you foresee that there will be problems with the Muslim community as far as this is concerned?

  Mr Clarke: Not in general. There are particular issues which are of concern to some, and some have discussed them with me, but I have tried very hard throughout to work closely with the Muslim community across a wide range and as a whole they have been very, very committed, determined and strong in saying that it is important to isolate extremism of the kind that we saw in July and are ready constructively to work to that end. Of course, as with any society there will be elements of difference of opinion about the best way to do that but I am struck more by the strong determination of the Muslim community to work with us to outlaw this terrorism than I am with the reverse, if I can put it like that.

  Q32  Mr Streeter: I am slightly troubled by some of your answers on the points that have been raised today. Are you really saying that if a group of North Korean students start a campaign trying to attract the attention of their own population by perhaps blowing up state buildings, saying that there is a hope of change, there are people out here who think differently, and they make it expressly clear that they want to bring about a change of government and usher in a new democratic era, bearing in mind this is a country in which 20 million people go to bed every night scared, cold, hungry and so on, and I issue a statement in this country calling upon all North Koreans to join this call to bring about change, that I could be caught by your new legislation? Is that not true?

  Mr Clarke: The word is "could" and it is true, yes. The word is "could". Do I think you are talking about likely events? I do not. I would make another very serious point to you which I am sure as a democratic politician you would agree with; that a course of action that suggests blowing up buildings in Korea is a way to bring about change in North Korean society is simply demonstrably not a sensible way of doing things.

  Q33  Mr Streeter: That is what you think; it may not be what the North Koreans think.

  Mr Clarke: Indeed, but they may be wrong.

  Q34  Chairman: Can I just come in for a moment on this. Home Secretary, you are criminalising opinion about how politics should take place, are you not? That is a long way away from preventing people encouraging the destruction of lives on London Underground.

  Mr Clarke: I simply do not accept that, Chairman. I am not about criminalising the expression of an   opinion; I am about criminalising the encouragement, glorification, incitement of terrorism. Mr Streeter was trying to envisage a situation in a contemporary world where, as it were, terrorism would be justified in such circumstances and he was really putting to me what do I think about that. My fundamental answer to his question is I cannot see any circumstance in the world today where terrorism of that kind is justified.

  Q35  Mr Clappison: You also included North Korea. You say terrorism, and we all hate terrorism, but the definition of terrorism is a very, very broad one in your Act. It includes acts of violence against any foreign governments. It would include, not necessarily blowing up factories in North Korea but any act of violence against that regime. Can I try another example which may be a difficult one? You mentioned Europe and the welcome changes seen in Europe. Some of those changes have come about peacefully but not all of them. You will remember the Ceausescu regime and at the time when that regime was falling people went into the streets and joined with the army to resist the official forces of that regime. If somebody expressed the opinion that they supported the movement against the rotten Ceausescu regime, would that come within the scope of this?

  Mr Clarke: Absolutely not. In fact, I think the Romanian change illustrates my point extremely clearly. What actually happened at the process of change in Romania was precisely as you said, millions of people coming on to the streets and it leading, as a result, to a change in loyalty for the army and so on.

  Q36  Mr Clappison: There were riots.

  Mr Clarke: Riots are not terrorism. They are a quite different type of thing, that is why I said it certainly would not be covered by this. If I could take the more recent example of the orange changes in Ukraine, that was not terrorism, it was people coming on to the streets saying "We must have change".

  Chairman: We are going to need to move on.

  Q37  Mrs Cryer: Home Secretary, I would like to ask you a few questions about Clause 3 which is about the dissemination of terrorist publications. The Law Society, JUSTICE and Liberty have made a number of criticisms about Clause 3 and they will be here later to tell us about their criticisms. I just wonder if I could paraphrase a number of those comments that  were made: Clause 3 creates an offence of disseminating a terrorist publication. The offence has been criticised for its breadth. For instance, it is argued that a London A-Z or an Underground map may be a "terrorist publication" for the purposes of this offence. Who's Who could be of assistance to terrorists because it lists addresses of prominent individuals, such as ourselves. How do you respond to these criticisms?

  Mr Clarke: Nonsense essentially. I am responding to the people you were quoting rather than yourself, I should emphasise. The idea that a London A-Z or Who's Who is a terrorist publication is simply laughable and it does not apply. Of course, when the police try to bring charges against particular people who are committing particular terrorist acts they may look at a map and say they had a map and that is what it was, but that is not as such a terrorist publication, not within the meaning of this Act and not in any other respect. I simply think it is ridiculous that they might make that case.

  Q38  Mrs Cryer: I think they were simply trying to explain the breadth of the clause.

  Mr Clarke: I understand that.

  Q39  Mrs Cryer: Clause 3 also requires no evidence of intent, but does require the prosecution to prove beyond reasonable doubt that a potential terrorist is likely to interpret the publication in a particular way. Is this requirement to "prove the thoughts and beliefs of absent terrorists" (as one of our witnesses put it) not likely to make it difficult for a prosecution to succeed?

  Mr Clarke: I do not think so. Essentially Clause 3 is a continuation of the earlier clause in the sense of saying that if terrorism is to be encouraged or glorified then the form of publication of that encouragement or glorification is a matter that needs to be addressed, and that is what the process here is about. Whatever form of publication one is talking about, whether it is electronic or written or whatever, those issues arise. I emphasise it is not about explaining, it is not about expressions of opinion in the most general sense, it is about encouragement and glorification and, indeed, incitement of terrorism and I simply do not think the legal issues about which you are asking are the concern that you think they may be.

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