Select Committee on Home Affairs Minutes of Evidence

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 is wrong.

  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 offences?

  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 them further?

  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 conclusion—let me be quite clear—is, 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 legislation.

  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 is used.

  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.

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