Examination of Witnesses (Questions 40-59)
RT HON
CHARLES CLARKE
MP
11 OCTOBER 2005
Q40 Mr Streeter: Moving on to the
new Clause 4, Home Secretary, and I am sure you wanted to introduce
it for a long time, this is about acts preparatory to terrorism.
The Newton Committee looked at this and recommended that such
an offence was not created but preferred instead that intercept
evidence should be admissible in court. Can you just bring us
up-to-date with the current thinking on intercept evidence which
many of us think is the obvious next step for you.
Mr Clarke: I will indeed. As I
have said throughout, including in the first statement I made
on these matters in December last year, the Government is not
opposed to using intercept material as evidence but there are
two very serious issues which we are trying to wrestle with, and
we are looking at them again as we said we would and we will continue
to. The first is in using evidence of this kind, to what extent
do we reveal to the potential terrorist organisation our means
of collecting intelligence—this goes back to the first exchange
I had with the Chairman earlier today—whether that is a
covert source or a phone tap or whatever it may happen to be.
That remains quite a serious problem for us which we have not
yet resolved. It is possible that the change in technology and
the way in which this is done will make it easier to address these
points, but that remains a serious issue. The second serious issue—perhaps
I can put it more clearly like this—is if a phone conversation
between yourself and Mr Clappison, for example, were to be adduced
in court as evidence in this area, your lawyers would say "We
would like to see all the material of all conversations that have
taken place between yourself and Mr Clappison that you have".
That would not be unreasonable in terms of the current disclosure
regime but the volume and quantity of material that would then
need to be kept to deal with that and the amount of court time
involved in it would be absolutely enormous and would make the
difficulty of getting that intercept evidence very much more difficult.
The main way we have been looking at to address this is a way
foreseen by the Newton Committee, which is to have some kind of
sifting process beforehand with a judge of some type who actually
goes through and deals with the point I have just described by
saying that only certain types of material are relevant from that
point of view. As I say, we are looking at it in a constructive
way but we have not yet got a solution which we think can work.
Q41 Mr Streeter: Might you be able
to bring that forward during the passage of the Bill through Parliament
and add it on?
Mr Clarke: I would not rule it
out but I think it is unlikely is what I am saying.
Q42 Mr Streeter: On Clause 4, we
know it is fairly widely drafted in terms of the kinds of actions
it might catch and our friends from Liberty, who do a great job
in preserving our freedoms in this country, think that it is important
to define those types of behaviour likely to attract criminal
sanction. Are you prepared to entertain amendments of that kind
to define the kind of action that you are trying to catch?
Mr Clarke: I am certainly prepared
to entertain amendments, as I indicated earlier. I am ready to
be flexible in the spirit of trying to get as broad an agreement
as we can in these areas. I am sceptical about that particular
proposal as you present it but certainly I would be ready to look
at it as you present it.
Q43 Chairman: Home Secretary, the
Government wants to ban Hizb ut-Tahrir,[1]
and Clauses 17 and 18 give you the powers you are taking for that.
What exactly are the links between Hizb ut-Tahrir and terrorism?
Mr Clarke: That is precisely the
issue which the Bill addresses. As you know, I have published
a further Statutory Instrument proscribing a number of terrorist
organisations on national security grounds. You will note that
the organisation you have mentioned is not included in the lists
of organisations which I have published for the House. The reason
for that is we believe we need to widen the definition of organisations
which need to be proscribed and, as you say here, that is dealt
with in Clauses 17 and 18 of the Bill. We think that the organisations
which do glorify, exalt or celebrate the commission, preparation
or instigation of terrorist acts ought to be proscribed. That
may be an issue of argument between us, I do not know, but that
is what we feel. That is the proposal we make. We then come to
the question if Royal Assent is given to this Bill in this form
as to whether any given organisation, including Hizb ut-Tahrir,
fits within that issue. I am not going to comment on that here
because I think it is only appropriate to look at any particular
organisation in the light of this legislation if it is partly
the form in which it is finally passed.
Q44 Chairman: It is reasonable to
assume, is it not, that they will fit this legislation because
the Prime Minister announced on 5 August that we will proscribe
Hizb ut-Tahrir?
Mr Clarke: Certainly it is reasonable
to consider that they will be considered under this legislation
and on that basis we will look at that organisation and all others.
Q45 Chairman: I was watching on television
the other night Gerry Adams welcoming the Balcombe Street bombers
on their release from prison. Would you say the links between
Hizb ut-Tahrir and terrorism are stronger than those between Sinn
Fein and the Provisional IRA?
Mr Clarke: I would not classify
them in that way. I do not think it is either correct intellectually
or right politically in this position for me to create a hierarchy
of relationships of this kind. We try and make an organisation
by organisation judgment.
Q46 Chairman: Gerry Adams is an elected
Member of this House and if he chose to take his seat he might
well be a member of the Home Affairs Select Committee asking questions.
Leaving aside the principle, the politics of this is if members
of the Muslim community see an organisation which, rightly or
wrongly, presents itself as a non-violent organisation being banned,
yet members of Sinn Fein can be elected to this House of Commons
and serve as Ministers when the Northern Ireland Assembly is actually
meeting, is there not going to be some strength to the argument
that there are double standards with different rules for Muslim
organisations and others for other parts of the community?
Mr Clarke: To be candid, I do
not think there is any strength in that argument at all. I think
anybody, the Muslim community or anybody else, is entitled to
look at which organisations are proscribed either now as under
the national security arrangements or under this proposed legislation
and make judgments in whatever form they do. I very much doubt
whether the Muslim community as a whole will judge its relationship
to the body politic of this society and its ability to be elected
to Parliament or whatever by whatever happens to these particular
organisations, I think they look at the broader issue. I believe
we should look at that organisation, and indeed all organisations,
once this legislation is enacted in whatever form it is enacted
and then decide on that basis.
Q47 Chairman: The Prime Minister
has announced that it will be banned and he presumably did that
after careful study. My point is this: if we ban some organisations
because of their alleged involvement with terrorism and we do
not ban other organisations who would appear to have some historical
link with terrorism, how are you going to explain to the
Muslim community that organisations with an Islamic basis are
banned and other organisations in our society with clear historic
links, in my view, with terrorism are not?
Mr Clarke: Chairman, I do not
quite know how to say this. You are extremely well aware that
in the history of Irish terrorism a large number of Irish terrorist
organisations were proscribed, indeed are still proscribed, under
legislation. That did not include Sinn Fein but a large number
of organisations were proscribed and, as I say, some still are
proscribed because they carried out terrorist acts. There is then
an argument which arises about what is the nature of the relationship
between that organisation which is proscribed and carries out
terrorist acts and the political organisation which is making
an argument. As we both know, there is substantial argument that
goes on both in the case of the Irish situation but also in the
case of other organisations about what the nature of their relationships
are. My job as Home Secretary is to try to evaluate those different
issues and come to a view about what should be banned on national
security grounds and what should not be banned on national security
grounds. Broadly speaking, I think we have taken good decisions
on this as we have gone through and I do not think the worry that
you are expressing of the Muslim community arguing that we are
somehow picking them out is well-founded. I remember in 2000,
when we first proscribed a list of organisations under the Terrorism
Act 2000, being attacked by a number of Muslim organisations on
the grounds that all the organisations we were proscribing were
Muslim organisations. It was not true. In fact, it was a minority
of the overall organisations that we did proscribe. People can
make an argument if they wish but my request is to look at the
facts of what we are actually talking about.
Q48 Chairman: As the Prime Minister
has decided to ban Hizb ut-Tahrir, I come back to the point which
you declined to answer earlier, is it reasonable to assume that
organisation has closer links to terrorism than, for example,
Sinn Fein ever had with the Provisional IRA?
Mr Clarke: I am sorry if I am
not being helpful, and I know I am not, but you are wanting me
to put in some kind of hierarchy or order different levels of
terrorism.
Q49 Chairman: I am looking for an
assurance of consistency, Home Secretary. I am looking for an
assurance that you are going to treat organisations that are now
coming into the spotlight with a consistency with decisions taken
by previous governments in this country in relation to other types
of terrorism.
Mr Clarke: If that is what you
are asking me, I can give an assurance of consistency at the present
time. What I mean is that we can look at all organisations at
the present time and decide how to deal with them. If you are
asking me to be consistent with what the British Government did
30 years ago in relation to a particular area, I would have to
study that carefully because I think events move over time and
what the British Government does has to move over time as well.
Q50 Mr Malik: Home Secretary, from
a broader Muslim community perspective, I think a more appropriate
comparator would be perhaps the BNP, the National Front and Combat
18. Again, I think if you were to ban Hizb ut-Tahrir and then
also ban some of these other organisations it would be much more
digestible than just focusing on organisations like Hizb ut-Tahrir.
We are in danger of building this perception that there are double
standards. I just wonder how you deal with that because it is
a live argument out there and if we are going to move forward
with this in the way that you propose then perhaps we are storing
up greater resentment, greater frustration, greater anger and
isolation, the exact thing that we do not want to do at this moment
in time.
Mr Clarke: Let me say that the
whole question of how to ensure strong communal relations and
to avoid communal tensions is completely at the core of the way
I try to carry out my responsibilities as Home Secretary in relation
to this area. I agree with you that if I were to take an act which
had the effect of exacerbating community tensions in some way
or another I should be rightly criticised for it, and I wish to
avoid that because I think that would be the wrong thing to do.
I come back to two points. Point one: we are talking about organisations
which glorify, exalt or celebrate the commission, preparation
or instigation of terrorist acts. That is a particular class of
organisations. If you take the racist organisations that you have
described, you could imagine, and I am not making this assertion,
one or more of them verging towards this kind of act, in which
case I would certainly say action should be taken against them
under this legislation, but only if they were, in fact, engaged
in glorifying, exalting or celebrating the commission, preparation
or instigation of such acts. If I am asked would I exercise that
in an even handed way towards different organisations, absolutely,
without qualification. The assurance of consistency, which the
Chairman asked of me, I would be very happy to give, I think it
is very necessary to do that, but in all circumstances we have
to go back to the glorification, exalting or celebrating the commission,
preparation or instigation of such acts, and that will be the
core test which I will seek to apply.
Chairman: Perhaps we can move on to the
controversial part of the Bill, Home Secretary, the extension
of detention.
Q51 Mr Winnick: Is there anything
here which is not controversial! Regarding the three months detention,
Home Secretary, at some stage you had doubts yourself, did you
not, about detaining people for a maximum of three months?
Mr Clarke: I did not actually.
I know exactly what you are referring to and I will just explain
it. I wrote a letter to the leaders of the opposition parties,
the Home Affairs spokespeople for the opposition parties, David
Davis and Mark Oaten, in which I was both setting out where we
were, explaining what I was proposing—in this case the three
month detention period—but I was also thinking how to signal
to them that I was ready, and I remain ready by the way, to seek
agreement in the interests of a consensual approach to this with
the opposition parties. At that stage Mr Oaten had not indicated
that the Liberal Democrats would oppose any change beyond 14 days
and Mr Davis had not yet had a chance to express his view on the
situation. I toyed in my mind as to how to write the letter in
a way which indicated flexibility on that in the way that I wanted
to do, so the letter went through a number of drafts and, owing
to the extreme efficiency of my office, we decided to show all
these drafts to the public in the interests of enhancing public
debate as the kind of spirit that we are always trying to promote.
It was not doubts in my mind about the merits of the three month
period, it was doubts about what I should say about the readiness
to agree with the opposition parties which led to that.
Q52 Mr Winnick: Leaving aside the
obvious question whether, in fact, three months will ever pass
both Houses of Parliament, is it the case that you are absolutely
now fixed on three months and any question of a shorter period
is out of the question?
Mr Clarke: I never say never in
politics and I would not say I have an absolute fixation on anything
actually but not on three months either. I have said to the opposition
parties if they are interested to talk about this, and in the
interests of getting agreement, I am interested to talk about
it too. To be frank, the messages I have had, explicitly in the
case of one party and still under advisement to some extent in
the case of another, are unready to extend the timescale significantly
beyond the 14 day period. If you ask me am I going to rule out
any amendments in these areas, no I am not. If you say to me am
I convinced the three months is the right period, yes I am. I
am genuinely interested, and this is the dilemma I was rehearsing
with you a second ago about how I wrote to the opposition parties
a few weeks ago, in getting to an agreed position on this and
my assessment at the moment is we will not get to an agreed position
on this. If I were to change that view then I would be prepared
to look at the matter flexibly.
Q53 Mr Winnick: I was wondering if
you watched the Panorama programme on Sunday where retired
Law Lords, without criticising them in any way but not the most
radical in British politics normally, have considerable serious
reservations about the three months. Does that in any way have
an impact on what you are saying?
Mr Clarke: I did not watch Panorama,
I make it a practice of not watching that programme. I read what
the Law Lords were reported to have said in the papers the next
day and, of course, I listen to them seriously. I simply ask them,
as I ask everybody, I ask the whole of Parliament, to address
the question of what is the best way of protecting our citizens
against those who seek to set off bombs in our midst. I have to
take that into account. I have to take into account when the police
and the CPS say to me, "Our ability to protect people is
seriously inhibited by the current 14 day limit", for reasons
which I published last week in the form of the letter from Mr
Hayman, the Counter-Terrorism Deputy Commissioner of the Metropolitan
Police. I ask people who think about these things to take those
views into account. We can decide at the end of the day we do
not care what the police think, we can decide at the end of the
day we do not mind tying our hands behind our back when dealing
with a terrorist threat and that situation, but that is not a
position I can adopt. Retired Law Lords, however distinguished
and however radical, do not have the question to address which
I have to address in deciding how best to carry out my responsibilities.
Q54 Mr Winnick: The figures which
you have supplied to us show that a total of 11 people have been
detained for the full 14 day period and charges were brought against
all of these individuals. One person was released without charge
after 12 or 13 days. No-one was held for more than 10 to 11 days
without charge. Inevitably the question is why is it necessary
to go from the 14 days to the very lengthy three months which,
as Liberty has pointed out, is virtually six months' imprisonment?
Mr Clarke: Firstly, as the figures
you have just quoted very clearly illustrate, we are talking about
a tiny number of people and I think that is quite important to
bear in mind first. Secondly, we are talking about a tiny number
of people involved in very sophisticated work to bring about terrorist
attacks. Why is that work significant now? Firstly, because of
the technicalities involved, the forensic work, the encryption
work takes much longer to do simply because it is far more complicated.
Secondly, because of the volume. The number of CCTV tapes that
were looked at by the police following 7 July was in the tens
of thousands and that requires a substantial resource to look
at it. Thirdly, because of the international ramifications,
and the international ramifications are a very major issue in
terms of this but pursuing this with other governments also takes
time. Each of those factors, and some other factors, means the
situation takes longer than would otherwise be the case.
Q55 Mr Winnick: Just two further
questions. Why not look at the possibility instead of extending
it beyond the 14 days period of tagging and curfews and other
restrictions which would make the lives of the people concerned
different from the rest of us, but at least they would not be
held in detention as such? Would that not be a sensible way to
look at this to avoid the controversy of holding people for such
a long period of time?
Mr Clarke: Certainly it is possible
to look at the Control Order type regime in certain circumstances
for those people, and we are ready to do that, but the important
element of the detention prior to charge is the ability to question
the suspect about what they have been doing and to put to that
suspect the evidence which has been derived from the kind of work
that I was talking about earlier and that cannot be done with
an individual on a Control Order.
Q56 Mr Winnick: Do you accept that
there are people whose loathing and contempt for those involved
in terrorism and, indeed, for those who try to justify it in the
United Kingdom, is no less than yours and other ministers, but
they find it totally unacceptable under British law, or a change
in the law, that people should be held for a period of three months,
hence the reason why this has become so controversial and quite
likely simply will not pass both Houses of Parliament?
Mr Clarke: I do accept the integrity
of the view that you express and I accept the integrity that you
are implying, that people have a total hatred of terrorism, as
of course we do in Government. However, there is one important
qualification. I do think it is incumbent on those who take that
view, who hate the terrorism and believe that our society is threatened
by it and we need to take action, to place themselves in the position
of examining what is the most effective way that we can deal with
some of the terrorist organisations which are threatening us and
to examine both legally and in police procedural terms what is
the best way of addressing these things and to take seriously
the advice of the police in relation to this. I can understand,
I suppose, that people can look at it very carefully and reject
that, but I then think they have an obligation in their abhorrence
of terrorism to say what they would do to contest this organisation.
The "let's hope it's all right on the night" school
is one that I cannot go along with.
Q57 Mr Winnick: It is three months.
Using the same argument you have just used, Home Secretary, one
could say why not six months or nine months? We have already gone
from 14 days to three months, how soon before we are told we must
go up, if not under this government then under another government,
to the sort of time I have just mentioned? The danger is so obvious
and I would have thought you would recognise the concerns of so
many of us on this particular matter.
Mr Clarke: Do not misunderstand
me, Mr Winnick, I completely recognise the concerns and certainly
in the case of you, but also many colleagues, recognise the integrity
of those concerns, I do not somehow think it is an unreasonably
developed position. Secondly, and this was part of my answer to
you earlier on, I accept that three months is not a God-given
amount and that is why I indicated flexibility about how to deal
with that in a proper way. I also need to draw to your attention
the fact that in many other jurisdictions people are held literally
for years in Europe under judicial control while this process
goes on, two years, four years, whatever.
Q58 Mr Winnick: Not a model for us,
I hope.
Mr Clarke: Not a model for us,
no, though for those people who say it is completely extraordinary
that this goes on, you only have to look at France, Italy or Spain
to see what the state of affairs is. I know the Foreign Office
is publishing a document on this tomorrow or later this week,
having done an analysis of this situation, to help the debate.
I do not think it is completely horrific by the standards that
we are talking about. I come back to the point that it is incumbent
on all those who are concerned about terrorism also to think through
what are the means we should use to defeat it.
Mr Winnick: I have already mentioned
curfews and tagging.
Q59 Mr Benyon: It may sound cynical
but one imagines that ACPO when they gave you the 90 day figure
were actually happy to accept less in the full knowledge that
they know how this place works and it will probably get pared
down in time. I want to come on to talk to you about the Law Society
who have said that they believe that this figure is tantamount
to internment. It is something I am sure you disagree with.
Mr Clarke: That is very perceptive
of you.
1 The Committee received a memorandum from Hizb ut-Tahrir
Britain. This is available in the House of Lords Record Office.
It is also available for inspection by Members of the House in
the House of Commons Library. Back
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