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 timestaking the Ukraine, for example, recentlyhave
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 occupationit so happens I am totally
opposed to suicide bombings, as I am against the Israeli violenceis
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
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 encourageI come back to that
word againterrorism 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
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
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 implicationI know this is not your
argumentwe 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
Q33 Mr Streeter: That is what you
think; it may not be what the North Koreans think.
Mr Clarke: Indeed, but they may
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
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.