Examination of Witnesses (Questions 60-73)|
11 OCTOBER 2005
Q60 Mr Benyon: In certain communities
perceptions are reality and if this is allowed to get into the
lexicon of local opinion it could cause serious problems. We know
what effect internment had as a recruiting sergeant for the IRA.
Have you addressed the concern that many people have in communities,
that this word "internment" could become part of local
belief on this?
Mr Clarke: If you want to use
it, and you are a Member of Parliament, you can get the word around.
It is not internment. It is nothing like what happened in Northern
Ireland. It is not in any sense a recruiting sergeant. I will
say that as loudly and as strongly as I can to everybody concerned.
I do not mean it for yourself as a Member of Parliament but if
the Law Society starts putting this word about then no doubt it
will get it reported and described and will give rise to concerns
which in my view would be utterly unwarranted. The fact is this
is not internment, it is not designed to be internment, it is
not meant to be internment, it is not about internment and it
is not contrary to the European Convention on Human Rights in
terms of detaining people. That does not mean to say that there
will not be some people for their own motives who will use the
word internment as they throw it about. Of course, I deplore that
and I would deplore it very strongly if it were used in that way.
We are not intending to bring in a regime of internment. In fact,
we had this debate very substantially before the election in relation
to the 2005 Prevention of Terrorism Bill on exactly how we dealt
with those issues.
Q61 Mr Benyon: Would it not be proper
to get the requests to be heard by a High Court Judge rather than
a District Judge?
Mr Clarke: I do not rule out change
of that type. I can see the force of that. I have no strong view
about the level at which it should be done. There is no administrative
argument. As I answered to Mr Winnick we are talking about a very
small number of cases, so there is not a bureaucratic issue about
the volume or number of issues. We put the level in this legislation
which we think is consistent with the other parts of the legislation
but if that proposal was to be made certainly I would not dismiss
it at all.
Q62 Mr Benyon: You clearly think
it complies with Article 5 of the Human Rights Act and others
disagree with you. Liberty, who we will be hearing from later,
disagree with you. What information have you got on how other
European and Commonwealth countries deal with it? You have already
spoken about some European countries that have much more draconian
laws. How do you respond to Liberty's assertion that this contravenes
quite categorically Article 5?
Mr Clarke: Simply by reference
to the very substantial advice I had on the matter before coming
to the view that it is right for me to certify this Bill as consistent
with the ECHR. You are right to refer to the other countries and
that is why my colleague, the Foreign Secretary, asked the Foreign
Office to do an analysis of regimes both in other Commonwealth
countries and a number of other EU countries and they are producing
a substantial text, I think tomorrow, that will precisely offer
analysis on these points to inform the public debate of what is
the state of affairs. I am delighted that they have done that.
The suggestion that this is not ECHR-compliant I simply think
Q63 Nick Herbert: Home Secretary,
how do you respond to the suggestion that since terror suspects
can already be detained for 14 days without charge that it should
be possible for the police in that time to assemble enough evidence
to charge the suspects with a lesser charge that will enable them
to be held but at least charged, and it will be possible then
if further evidence arises to upgrade the charge to terrorist
Mr Clarke: Firstly, I think the
words you used "should be possible" is an important
clause. It should be possible but it may not be possible, that
is the key point. In the framework of legislation proposed before
Parliament I have to look at the possibility that it may not be
possible to do that. That said, the thrust of what you have just
said, ie the possibility of interview after charge and putting
different charges in at a later point, is something that I am
very ready to discuss. That has implications for the rest of the
legal system as well if we go down that course. Certainly it has
merit to be looked at and we are actively looking at it, but it
does not deal with the core issue that because of the complexity
of the evidence we are talking about in these cases it is possible
that we may not be in a position to charge by the end of 14 days.
Q64 Nick Herbert: Can I come back
to the answer you gave to Mr Winnick in relation to tagging or
Control Orders. You said that did not deal with the fact that
it was necessary to have the suspects present. I thought the purpose
of the extension was to allow the police to have time to gather
evidence. If they succeed in gathering further evidence, why would
it not be possible to re-arrest them, bring them back and question
Mr Clarke: It might well be. I
thought about the answer I gave to Mr Winnick and I thought I
was not quite accurate in what I said to him because I think what
you have just said is, in fact, a possibility in those circumstances.
As I said to Mr Winnick, I am always ready to look at other ways
of dealing with it. The fact is we are talking about people here
who by hypothesis are absolutely determined to engage in terrorist
acts, to deal with the kind of disasters that we saw in July.
In those circumstances I would need to be very, very, very confident
that we had those people under complete control so that we could
intervene and ask them about their activities before charges are
brought, and that is really the core of the issue.
Q65 Nick Herbert: Are you suggesting
that tagging would not be a robust enough technology to keep an
eye on suspects of that nature?
Mr Clarke: Tagging is obviously
less robust a means of control than detention.
Q66 Chairman: Home Secretary, can
I take you back to your first answer to Mr Herbert's question
about the timing of charges and procedures at that level. Looking
at Mr Hayman's dossier, it does look as though in every case,
apart from the theoretical one, the problem was bringing charges
before they had been able to amass all the evidence and because
all the normal rights of protection for the charged person, the
defence solicitors, disclosure and all the rest of it kick in
which basically short circuits the investigation and there is
a danger of losing what should be a good prosecution. Are you
saying that it might be possible to change some of those procedures
through this particular piece of legislation because you seem
to have gone for the fairly crude thing of saying, "Let's
keep them for another couple of months while we do the investigation"
when there might be other changes that would be possible to back
up Mr Herbert's point? If not in this legislation, when might
you bring those forward?
Mr Clarke: You have put your finger
on a point that perhaps I was not clear enough on with Mr Herbert.
I absolutely think it is worth looking at changes in procedure
and process, not only from the point of view of this type of legislation
but also more generally because these issues arise right across
the whole of the criminal justice system actually. I think there
is a good case for looking at these. In fact, the closer I become
exposed to the workings of the legal system the more I think reform
is warranted. I do not think in terms of the timescale for this
Bill such a change could be contemplated. I do think that it is
worth looking at changes in the not too distant future in a number
of these areas, in particular the issue of the possibility of
having higher charges and interviewing after charge. That is definitely
something worth looking at.
Q67 Mr Browne: Home Secretary, what
do you say to the theory that the three month period is just a
starting point to negotiation for you but you cannot reveal that
because then you would show your hand in the negotiation?
Mr Clarke: Let me tell you my
true hope. It is a ridiculous conversation. I do not mean the
question is ridiculous. As you saw as we went through Parliament
on the pre-election procedure as you were watching it, the fact
is there is a process that Parliament goes through. I would like
to get to a position, and I have been very clear from the outset
and to be fair to my colleagues, the opposition spokes people
have been clear too, both Conservative and Liberal Democrat parties,
that we would like to get to a position where we have consensus
on proposals which go through. That is what I would like and I
have said throughout that I am keen to get to that state of affairs.
I am now extremely doubtful about the possibility of achieving
that and, therefore, it will be in the parliamentary process that
we will see what happens.
Q68 Mr Browne: The concern that I
have and the concern that I suspect other people have is that
the Government should be justifying making an extension beyond
the 14 days and that what will happen instead is a middle point
will be reached where everyone will be seen to have been reasonable
and to have taken into account everybody else's views but the
effect will be that the period of detention will be maybe three
times longer than it is now and the Government will have negotiated
down from the three month position rather than making the case
up from the 14 day position.
Mr Clarke: Let me be very clear.
None of this was negotiated and the remark that was made about
there being ACPO negotiation was completely wrong, nor is it a
negotiation as far as I am concerned. I have gone through talking
to the police, the CPS and other security agencies at length about
what will be the right time frame. The conclusion I have come
to is that three months is the right time frame. I think that
is right for the protection of our society against terrorists.
By comparison with other countries, as I said a moment ago, I
do not think it is an extreme length of time. I am aware of genuine
civil liberties concerns which have been raised by people and
I want to pay as much account to that as I can. My conclusionlet
me be quite clearis, and has been for a considerable period
of time, that three months is the right time. Now I am in a position
of saying, that being my view, am I prepared to try to get to
a situation where we can get cross-party agreement and is it worth
having a conversation around that? I was in that position but
the main opposition parties have come back and said they are not
interested in talking about an extension. I do not mean that as
nastily as it sounds, they are obviously interested in talking
about it but they are not really interested in shifting it from
14 days. I think I should put down what I think is the right thing,
so I am putting down what I think is the right thing.
Q69 Mr Browne: I think another concern
touches on the points made by Mr Winnick earlier, which is if
we were looking at another country and they were proposing extending
this period by six or seven times the existing length of time
you could detain somebody without charge, that would give us cause
for concern. The underlying assumption of the Home Office, and
the Prime Minister himself, seems to be that we live in a benign,
liberal democratic state and we have a government run by people
who genuinely have our best intentions at heart and, therefore,
there is nothing too much to worry about. I wonder whether that
is the basis on which we can put down laws which may be enacted
or interpreted by other governments in the future because we start
from the point that the state is always a benign force that has
our best intentions at heart?
Mr Clarke: You have changed the
language, if I may say so, because you started talking about a
benign democratic society, or maybe I misheard you. We live in
a state of affairs where we have a benign democracy in which people
can express their views and operate in that way. I believe that
is an accurate description of our country and it has been an accurate
description of our country for a considerable period of time,
and I think it will be an accurate description for a considerable
period of time even if other parties are in government. I do not
see a position where we will get into a totalitarian Britain by
some path that means that we are in that state of affairs. I think
that is a cause for celebration and our laws should reflect that.
For example, the fact that we have close judicial overview over
the whole of this process ought to give encouragement to those
who believe that we live in a society which is based on the rule
of law and how it operates, so it is not a question of the police
arbitrarily giving evidence X, Y or Z, they have to persuade a
judge that is the case, depending on what level of judge we are
talking about, and that is a discussion to be had. The fact is
that is the rule of law of society, the rule of law of democracy
in which we live, and I think we will continue to live in that
and we should pass our legislation in the knowledge that is the
kind of society in which we live.
Q70 Mr Browne: A final specific point
which is that the reasonable assumption is that most people who
would be detained for a period of up to three months were this
legislation to be passed would be Muslims. I do not have a particular
problem with people being detained but, let me put it this way,
I do not think there should be any quotas on the ethnicity, gender
or religion of the people who are detained. I do think that if
a process has been observed where the person has been charged
then there is less cause for complaint than if powers were being
exercised which were perhaps seen as more arbitrary, no charges
being brought, and overwhelmingly being applied to one section
of the community. How would you respond to that?
Mr Clarke: In two or three ways.
Firstly, the people who are being detained and questioned prior
to charge, as the people who are charged, are all individuals
who have or have not committed certain acts. They are not Muslims
or Irish or whatever, they are individuals.
Q71 Mr Browne: That is the point
I was concerned about.
Mr Clarke: I think it is very
important that is maintained. If there are people who argue that
people are being charged or detained prior to charge because they
are Muslims or because they are Irish, that would be totally the
wrong thing in the legal process. That is why we have to leave
the safeguards that we have in the process, judicial overview
and so on, which is my second point. Throughout all of this, it
is not some arbitrary executive act even of the police, let alone
of ministers, it is an act which is under judicial supervision
all the way through. Of course it can be argued that judicial
supervision is somehow flawed, inadequate or dishonourable, I
think untruthfully but it could be made. That is a guarantee.
The third guarantee is by the time you come to charge you are
in a state of affairs where you are charging on the basis of evidence
which is there. No part of the evidence can be "This individual
is a Muslim" or whatever it might be. The biggest discussion
I have with the Muslim community and others is there is a massive
difference between the Muslim community and terrorists. The fact
is terrorists are different people, they are not representing
the Muslim community and in a sense they are not even part of
the Muslim community precisely because they go down that course.
I am not going to come back from the proposition that it is the
operation of the law which has to operate here without fear or
favour in relation to particular communities, it is people who
are thought to be terrorists who are being dealt with under this
Q72 Steve McCabe: Home Secretary,
I just want to return very quickly to the question of safeguards
around any extension to the detention period. I am conscious the
language seems to be "about three months", but my understanding
is it is a maximum of three months and I wonder if you think that
has been made sufficiently clear. I do recall when Parliament
was discussing Control Orders similar concerns were expressed
and the offer was made that there would be independent review
of how Control Orders were operated and this would be offered
to Parliament. I wonder if you would be prepared to consider a
similar safeguard in this respect given that some of the organisations
who were opposed to Control Orders did not think they would be
an acceptable substitute. I wonder if you could offer the same
assurance in terms of independent review of how this detention
Mr Clarke: On your first point,
Mr McCabe, you are quite right and perhaps I have been guilty
of your charge, even in evidence to the Committee today. We are
talking about a maximum of three months, we are not talking about
it being routine or anything of that kind, it is simply in a very,
very small number of cases that might be necessary. I know that
some people will try to build a wider point from that but you
are right to say that it is the maximum point which should be
highlighted. Secondly, I am always ready to look at review procedures
to Parliament. I think it is right that Parliament, both through
this Select Committee but also through other devices, is able
to get the data it needs to understand how the policies have worked
in practice. As you say, in the Prevention of Terrorism Act 2005
we set out a set of procedures as to how that might operate. In
addition, we have published data here, which Mr Winnick referred
to earlier on, about the number of cases in this area, the times
of holding and so on, and I am perfectly ready to look at propositions
about how we might best report to this Committee or to the House
as a whole or whatever on the operation of this legislation.
Q73 Mr Burgon: I would like to ask
you a question on the existing terrorism powers. Figures supplied
to us by the Home Office show that whereas in the past four years
over 750 people have been arrested under the Terrorism Act, only
22 individuals have been convicted of offences under the Act.
Does this not suggest that the powers in the Act are not being
used effectively or appropriately? How do you respond to that?
Mr Clarke: There is the timescale
of cases going through but what the statistics illustrate is the
difficulty of getting evidence to bring prosecution in a number
of the cases for exactly the reasons we were talking about earlier
on. You are quite right in the implication of your question, Mr
Burgon, we are looking very closely at whether we are using the
current legislation as effectively as we could to address some
of the issues that you just described. I come back to the same
point the whole time, it is about evidence in a very, very difficult
area of police work.
Chairman: Home Secretary, may we thank
you very much indeed for answering our questions very directly,
as always. Thank you very much for your time this morning.