|
UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 515-i House of COMMONS MINUTES OF EVIDENCE TAKEN BEFORE home affairs COMMITTEE
Tuesday 11 October 2005 RT HON CHARLES CLARKE MP MR ROGER SMITH, MR ERIC METCALFE, MS VICKI CHAPMAN, MS ALEXANDRA MARKS, MS SHAMI CHAKRABARTI and MR GARETH CROSSMAN Evidence heard in Public Questions 1 - 122
USE OF THE TRANSCRIPT
Oral Evidence Taken before the Home Affairs Committee on Tuesday 11 October 2005 Members present Rt Hon John Denham, in the Chair Mr Richard Benyon Mr Jeremy Browne Colin Burgon Mr James Clappison Mrs Ann Cryer Mr Nick Herbert Steve McCabe Mr Shahid Malik Gwyn Prosser Mr Gary Streeter Mr David Winnick ________________ Witness: Rt Hon Charles Clarke, a Member of the House, Secretary of State for the Home Department, examined. Q1 Chairman: Good morning, Home Secretary. Thank you very much indeed for joining us again. We appreciate it because you were in front of us in September and, as you know, you are coming back in front of the Committee for the whole work of the Home Office in a couple of weeks' time. Mr Clarke: Regular date, Mr Denham. Q2 Chairman: A regular fixture. Thank you very much indeed. This morning we want, as you know, to look at the draft clauses in the new Terrorism Bill. The timetable does not allow a full scrutiny hearing by the Committee but we welcome the opportunity today to hear from you about the proposals in the draft Bill. Can I start by asking you a fairly general question about what you hope the impact of the Bill will be. In particular there are a series of offences aimed at preventing the promotion or incitement of terrorism. I think it would be very useful to get a sense from you about how significant the absence of that legislation has been in allowing terrorism to take place? Mr Clarke: It is a very good question and a very difficult one for me to answer, Mr Denham. As I said to this Committee before and elsewhere, I do not believe there is any particular measure, any particular silver bullet, whatever it is, which you can say had that been in place event X or event Y would not have happened. I do not argue for this Bill that had the particular measures in this Bill been in place that I can put my hand on my heart and say in front of you that means that events which took place in July would not have taken place. What I can argue, and I do with hesitation, is that the framework within which we attack terrorism needs to be more clearly set out and established, and I think this Bill helps us to get to that. Combined with the Terrorism Bill 2004, we are trying to get a permanent legislative regime for addressing terrorism rather than dealing with it in a series of emergency pieces of legislation to get a framework within which that can be looked at. Now if you ask me what the three main things I would identify from this particular Bill are, I would identify firstly the fact that we are sending a very, very clear message, backed by criminal sanctions, that people who engage in, incite, glorify and promote terrorism, that is not acceptable activity in any form whatsoever. That raises, of course, the kind of free speech issues which people will debate in the House when we come to consider it. Secondly, there are a number of specific measures about prevention of the impact of terrorism and strengthening our resilience, for example in relation to the nuclear installations and so on which are carried on in the Bill. Thirdly, we are talking about changing the criminal procedures in a way that will make it easier to prosecute terrorists. I would cite those as the three main things of this particular Bill. Q3 Chairman: If we could dwell for one moment on what you describe as free speech provisions. It does not sound as though there is any evidence, or even any clear assessment, that the failure to prosecute the sort of acts that would there be covered by this Bill have led to us being significantly more exposed to terrorism in this country or abroad. If one of the hallmarks of a free society is that people can say in general all sorts of very offensive and controversial and unpleasant things, but that is what happens in free society, should there not be a bit more than just a general sense we have got to clamp down on things before you introduce such wide ranging legislation? Mr Clarke: I think the adjectives used were interesting. "Offensive, controversial, unpleasant" were the adjectives you used. I think a free society definitely should not only encompass but positively celebrate people saying offensive, controversial, unpleasant things, including about other people. The question is where that line then moves from those kinds of adjectives to incitement, which is a classic word which exists already in law, to promoting hatred in the case of another piece of legislation being considered in the other place today, in the case of encouraging or glorifying terrorism. Now, I believe that it is certainly the case that the July events indicate that there are people in this country who are susceptible to the preaching - and I do not use that in the religious sense - of an argument or a message that terrorism is a worthy thing, a thing to be admired, a thing to be celebrated and then act on the basis of that. I think that is clear evidence in that sense. What this Bill is about is trying to make that more difficult, that transition from people encouraging, glorifying to then an act being undertaken. Q4 Chairman: Just one final point on this theme. You have a number of ways of tackling people who are trying to promote terrorism, of which intelligence and policing are the most obvious. Compared with intelligence and policing, how significant would you say are the measures in this Bill? Mr Clarke: I have always put at the top of the list intelligence, so I think I would put that ahead of anything else in terms of anything you are doing beneath that. I would put policing and the creation of a climate within which terrorism cannot be encouraged or glorified on the same level. Intelligence has always been my number one issue and, as you know, we discussed it before, Chairman, in front of this Committee, the various issues that you have to take into account in getting intelligence between individual liberty on one hand and police intelligence on the other are difficult and problematic questions on their own account. I think I am bound to say that intelligence is at the top of the agenda which is why, by the way, some of the measures on, for example, dealing with encryption are in the Bill as they are. The second level is creating a climate within society where we know that terrorism cannot be glorified or encouraged. Q5 Chairman: When you came to the House after the bombings on July 7 you took a very measured approach and you did not say the rules had changed. In August the Prime Minister announced that the rules had changed. What has happened to bring about such a big change in the Government's approach? Mr Clarke: I do not accept the description that you offer, Chairman. I did not use the phrase "the rules have changed", the Prime Minister did use the phrase "the rules have changed" but it was not because I did not think the rules had changed, in fact I would argue that when I came to the House on July 20 to set out the measures that I thought we needed to do on unacceptable behaviours, I said explicitly in my statement to the House that in my view the situation had changed in terms of the way the Home Secretary ought to be using his or her powers in relation to any particular unacceptable behaviour. I suggested a process for dealing with that and carrying it forward. Now it is quite true, as I say, I did not use the phrase "the rules have changed" but I did say the circumstances since July 7 had changed significantly to such an extent that I thought the basis of a judgment on unacceptable behaviour ought to be changed and I set out a process by which that would be followed. The Prime Minister on 5 August set out a series of measures including those, and he used the language that the rules had changed, with which I agree. I think it is quite true. I think it is entirely consistent with what I said in July. I know some people have tried to - and I know you are not trying to do this, Chairman - imply a difference of approach between the approach that I took following 7 July and the Prime Minister took on 5 August. I simply think that is not correct, I think it is part of a continuum. As I said before to this Committee, I discussed with the Prime Minister in detail what he was going to say on 5 August, and what he did, and my officials were involved in drawing that up very directly. I do not accept the argument that there is some lack of continuity in approach or style. Q6 Chairman: Before we go into the detail of the first three clauses, could I ask a general point about it. In legislation like religious hatred, legislation currently going through the House, there is a high threshold of requiring the Attorney General to consent to prosecutions. This Bill has lower thresholds for consent to prosecution, in some parts the Director of Public Prosecutions, in some parts the dissemination of terrorist material, the normal CPS approach. Given the concern about this Bill, and the fact it is likely to be used I guess relatively rarely, why not have the same consistent threshold of the Attorney General's approval to prosecute? Mr Clarke: I am not against that in principle if that is a matter that your Committee is thinking about and we debate it when the House is looking at the legislation. I am not root and branch against that. I did not feel it was necessary, which is why I did not put it in the Bill. I think the DPP approval in particular is an important trigger and safeguard that will ensure we do not have frivolous or unconsidered prosecutions. There are some issues around what types of crimes it is appropriate for the Attorney General to sort out or not. The conclusion I came to at the end was that what we had in here was the right balance. It is not a point of principle, as far as I am concerned, and it is a matter certainly I am prepared to look at in Committee as we discuss it. Q7 Gwyn Prosser: Home Secretary, I want to ask you about Clause 1 of the Bill. What exactly is the problem you are seeking to tackle with the proposed ban on the encouragement of terrorism? Why does the current law of incitement not cover this adequately? Mr Clarke: If I can deal with those questions, Mr Prosser, in reverse order. The current law of incitement essentially deals with a very particular event which an individual committing an event is incited to commit, for example to commit a very particular act in a particular way. We believe, and the advice we have had from the CPS and the others, is that means it is difficult to prosecute in the more general circumstance where an individual organisation is inciting in general but not linked to a very particular crime. That takes me to the answer to the first part of your question. What we are trying to achieve is to create an environment within which the incitement to crimes of this type is illegal in the way that I suggest, so that a general incitement - and we link glorification to that for these purposes - is we think the best way to deal with that, and fills a gap which we think the current law does not properly fulfil. Q8 Gwyn Prosser: In the House on July 20 you said - and I am quoting - "... indirect incitement, when it is done with the intention of inciting others to commit acts of terrorism ..." that is an important qualification "... will become a criminal offence". With that basis, why does Clause 1 not include this important qualification of intention? Why is it desirable, in your view, to create an offence even when there is no intention of encouraging terrorism? Mr Clarke: Because I think we need to deal with defences which say that they are doing something without intent. The fact is, and I think it is an important fact, there are individuals and organisations abroad who seek to promote terrorism in general, and consciously go about doing it, but would argue that simply is a statement of their view without any implication that that view has an impact. That would be their argument but I do not think it is a valid argument. I think if one goes around saying it is a great and wonderful thing to blow up tube trains and kill people in London then I think that is something which both could, and indeed some might even argue is likely to, have an impact on certain individuals and we ought to be trying to rule that out in the way that we approach the law in these areas. That is why we framed this particular clause in the way that we have. Q9 Gwyn Prosser: Do you accept the criticism from some quarters that Clause 1 will have a chilling effect on freedom of speech and do you think that is a price worth paying for what might be just a marginal improvement in our security? Mr Clarke: I absolutely do not think that. This question of what is the appropriate boundary for freedom of speech is an absolutely fundamental one, and of course a difficult one, and one that we as parliamentarians have to address the whole time. We already accept limitations on our freedom of speech in relation to racial hatred, the proposed case of incitement to religious hatred and in some other areas, and I think rightly so. The question which arises is should that general restriction on freedom of speech, which already exists in some areas, be extended to deal with those who seek to encourage terrorism. Now I answer that question yes and I think it should be because I think, firstly, terrorism is such an appalling act which needs to be outlawed in that way, that encouragement of it ought not to be permitted but, secondly, because I believe there is a real possibility that that encouragement is certain to have an impact on the minds of some individuals leading them to behave in a certain kind of way. Do I think on the other hand that the freedom is so restricting that it will genuinely inhibit the kind of debate the Chairman was referring to a second ago in the kind of conversations he was talking about - offensive, controversial and so on - well, I do not really think it will. Q10 Chairman: Home Secretary, why is it reasonable to expect a jury not to be able to judge somebody's intent but to be able to judge the effects of whether somebody should reasonably expect that their words do not have an impact? Both are asking you to get inside the head of an individual, why is it so much easier for the jury to be able to make one judgment and not the other? Mr Clarke: Because I think the judgment they will be asked to make is, firstly, is there an encouragement to terrorise? I think that is a fairly straight forward judgment for a jury to have to make based on the evidence in front of them. Secondly, is the effect to the knowledge of the individual concerned likely to be what we are talking about in this clause? I do not think that is really very, very difficult for juries to assess. I think a much more difficult issue for a jury to assess is if an individual says "Yes, I was seeking to encourage terrorism but without having the intent to incite a particular act", and then for the jury to decide whether that is in fact true or not in relation to that particular act. I think that is a more difficult issue for a jury to have to assess than the issue of whether there is encouragement and whether the person doing the encouraging could understand the effects of what they were doing. Q11 Mr Malik: Good morning, Home Secretary. Do you believe with the Law Society "that recent remarks by Cherie Blair and Jenny Tong expressing understanding of the motives for terrorism in some parts of the world would be very likely to be caught by this offence as it is currently drafted"? Mr Clarke: Not at all and in fact we have looked carefully, obviously, at various formulations of words that might be used in particular circumstances, I absolutely believe that is not the case. Analysing why terrorism takes place is not only acceptable, it is a critical requirement of our society that we do it and openly discuss why it is we think it is happening. Understanding in the language of any particular individual why people have done that and how that should be, I also think that is perfectly understandable. Encouraging and glorifying are quite different things from understanding and I would categorically say that the remarks you are referring to would not be encompassed within this particular legislation. Q12 Mr Malik: Do you really support the presumption that underlies this legislation that violence against the state can never be justified, no matter how brutal or repressive the state? For instance, if someone argues that terrorism in Chechnya is understandable or even justified, given the human rights abuses there, have they not got at least an arguable view which they should be entitled to express? Mr Clarke: It is a very difficult question, of course, to understand if there are any circumstances in which the use of the word terrorism at this moment might possibly be justified. I think myself it is impossible ever to justify blowing up civilians on a bus or on a tube train, whatever the circumstances actually, and I think it is completely unacceptable whatever it might be. I also think that it is even more unacceptable if there are elements of democracy in a situation. I use the words "elements of democracy" because throughout Russia, including Chechnya, there are elements of democracy, if I can describe it like that, which allow people to make their argument in a political way. If you are talking about fascist Germany or totalitarian Soviet Union in the 1930s or 1950s, I think it is a different type of argument that arises in such circumstances, and I simply observe - and I expressed this in a speech I gave last week in Washington - that there has been a massive progress to democracy in all parts of the world, not as a result of terrorism in any form but as a result of political action that people take. Q13 Mr Malik: Why is state action excluded from the effects of this clause? One could, for example, be prosecuted for supporting violent action to end the Indian occupation of Kashmir but not for supporting that government's killing of civilians, and you will appreciate that no human rights organisation is allowed in Indian occupied Kashmir, one hundred thousand dead, tens of thousands of rapes committed, mainly by the troops there. Similarly, one could be prosecuted for justifying Hamas attacks against Israeli citizens but not Israeli attacks on Palestinian citizens; why? Does this not create a double standard that only breeds further extremism and increases the possibility of terrorism? Mr Clarke: I do not think so at all. I think that terrorism as a means of bringing about change is unacceptable, full stop. (a) I think practically it does not do it but (b) I think it is unacceptable even if it were to. I think we should stand against that very, very strongly. Now you could make an argument about how state organisations operate and whether they are particular forms of activity which could be characterised as terrorism as opposed to police action in a particular circumstance, I am well aware of that. There are issues in terms of the state where war crimes are committed and where we now have a system, I am glad to say, where they can, in principle at least, be brought to justice at an international court. Whether you can act on behalf of the state in relation to such important things, I do not accept the parallels that you were describing in the circumstances that you set out and nor do I accept that whether it is in Kashmir or in Israel terrorist action is an acceptable means of proceeding. Q14 Mr Malik: Do you not accept that it is more reprehensible for a democratic state to be carrying out acts of terrorism as perceived by the victims in comparison to people who are carrying out violent acts and perceive themselves to be those victims? Mr Clarke: I think any act of terrorism is absolutely deplorable, particularly if, as you say, it is carried out by a democratic state. However, I think you have to be quite careful in your argument about what is or is not terrorism in such circumstances. You have qualified your question rightly by reference to "as perceived by the victims" and we all know that language is used, for example the words "language of terrorism" are used in a very, very loose way but I think that this legislation helps us to address that. Q15 Chairman: Can I just pick up the Home Secretary on this point, Mr Malik. Home Secretary, you are talking here as though terrorism is something which involves killing civilians but it does not, does it? According to the Government's definition of terrorism it is any violence designed to influence the policy of a government, which could just involve damage to property. We are not talking about blowing up civilians, we are talking about making it illegal here to ever advocate under any circumstances any violence, including against property, designed to influence any government, including oppressive regimes. That is how terrorism is defined in British law at the moment. Is that not the problem, that it is obvious if we are talking about blowing up civilians on the Underground or in a bus queue, whether that is in Jerusalem or in London, we are talking about any type of political violence. Mr Clarke: With respect, Chairman, it is not obvious. The example Mr Malik gave was Hamas, for example. It is not obvious that blowing up a bus in Tel Aviv is an unacceptable act as far as Hamas is concerned. Actually you are quite right in the way you put your question to me that the definition of terrorism that the Government encompasses is wider than simply action against civilians. So the proposition of your question is correct but the fact is as we go through this - I agree - difficult territory about what kind of action is acceptable, what kind of action is unacceptable in certain circumstances, I think it is as important for me to emphasise that those who oppose this clause look at the Hamas act, that is the example that Mr Malik raises, of blowing up a bus and saying somehow that is justified in the same way that action against property or whatever action that one gives can be. I think it is a very important discussion we are having at the moment but I think it is very, very important indeed to say, and I believe it to be demonstrated by a wide number of historical facts in a recent time in our lifetime, Chairman, that the way to make change is through political action rather than through violence. Q16 Mr Winnick: But say such a law existed at the time when apartheid was in power in South Africa, what would have been the position of those people who refused to condemn the violence of the African National Congress who after Sharpeville decided on a policy of violence? Would it not have been the position that a good number of Labour MPs and leading people in the National Union of Students and the rest could have found themselves subject to prosecution? Mr Clarke: Not at all. There is nothing whatsoever in this Bill which at any time would make them all guilty of breaking the law for not condemning or not doing anything in relation to this. I remember in the National Union of Students, for example, we had a long debate in our conference about precisely this issue with the ANC in the early 1970s. Q17 Mr Clappison: I think I was there. Mr Clarke: I do not think the Conservatives were very involved in those discussions at the time. Q18 Mr Clappison: I was there. Mr Clarke: You were there, I beg your pardon, Mr Clappison, I apologise. Were you a Conservative at that time? I am not sure. To come back to the very serious point that Mr Winnick has raised, in terms of the way you put the question Mr Winnick, this Bill would not stop anybody who did not condemn X, Y or Z, it is not urging people to condemn anything in particular, it is dealing with people who glorify or encourage. Q19 Mr Winnick: If people said at the time - as many did - that South Africa was ruled in such a brutal manner and it was right in all the circumstances following Sharpeville that violence was justified - after all Lady Thatcher constantly said that Nelson Mandela was a terrorist - had such a law, as I said, been in place, would there not have been a danger that people would have been prosecuted if they justified what was being done and indeed, for that matter, however much I am opposed to terrorist violence I have to say that I found it almost impossible to condemn the ANC? Mr Clarke: Me too as well, Mr Winnick, and the fact is that you would not have been in breach of this law, even at that time, had you not condemned, as it were, what was happening. 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 1945-1989 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 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 2004, 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: They 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. 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, 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 spokes people 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 ten 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 alright 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. 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 2004 Terror 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 Mr 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 Mr 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 Mr 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 Terrorism Act 2004 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. Memoranda submitted by JUSTICE, The Law Society and Liberty Examination of Witnesses
Witnesses: Mr Roger Smith, Director, Mr Eric Metcalfe, Human Rights Policy Director, JUSTICE; Ms Vicki Chapman, Head of Law Reform, Ms Alexandra Marks, Chair, Law Reform Board, The Law Society; Ms Shami Chakrabarti, Director, and Mr Gareth Crossman, Director, Policy, Liberty, examined. Q74 Chairman: Good morning. Thank you very much indeed for coming. I regret to say that not all of these witnesses will be as familiar as the Home Secretary so if you could introduce yourselves briefly and which organisation you come from. Mr Crossman: My name is Gareth Crossman, I am the Policy Director at Liberty. Ms Chakrabarti: Shami Chakrabarti, the Director of Liberty. Ms Marks: I am Alexandra Marks, Chair of the Law Society's Law Reform Board. Ms Chapman: I am Vicki Chapman, Head of Law Reform and Legal Policy at the Law Society. Mr Smith: Roger Smith, Director of JUSTICE. Mr Metcalfe: Eric Metcalfe, Director of the Human Rights Policy Unit at JUSTICE. Q75 Chairman: I hasten to add, we will not expect all six witnesses to answer all of the questions otherwise we will be here for a long time. Can I start off with some general questions where I would welcome the views of each of the organisations. Do you accept that in this country at the moment there are people out there who by their language, by their actions, are actually radicalising some young people, encouraging them to look at terrorism in a positive light which might lead some of those to seek out terrorist organisations and become involved in terrorist activities? Do such people and such processes exist in this country at the moment? If we could start with Liberty, please. Ms Chakrabarti: Chairman, yes, certainly we do accept that and our approach to anti-terrorism policy generally and legislation in this context specifically is with a view to that threat and with a view not, just as the Home Secretary suggested, to crossing fingers and hoping it will be alright on the night but with a deliberate view to address the current threat at an ideological, social and operational level, and in our view all three are interconnected. We fear with some aspects of this Bill both the law of unintended consequences and, if you like, the long-term constitutional dangers where over-broad powers could be used and abused by accident or design for many years to come. However, more pressingly perhaps, we fear desperate counter-productivity in the short term both at the ideological level where we and others like us have to go out and address this new, bizarre, totalitarian ideology with our own principles which are based on our democratic rights and freedoms and indeed the social counter-productivity and ultimately the operational counter-productivity because ultimately I am sure we would all agree, and the Home Secretary has suggested this, it is good intelligence, more good intelligence from some communities in particular rather than more over-broad or, I would say, bad laws that is a pressing priority. Q76 Chairman: Your argument against these measures is that they are counter-productive, not that it is actually wrong in principle to be able to prosecute somebody for inciting or glorifying terrorism, but it is just you think that in practice doing that will make things worse? Ms Chakrabarti: No, it is two-fold, Mr Denham. If one is addressing the remaining speech offence in particular, it is wrong in principle for the offence to be quite as broad as it is and I can perhaps be more helpful and more detailed in a minute. Q77 Chairman: We will come back to how it might look in a moment. Ms Chakrabarti: So it is wrong in principle, but this is one of the many occasions in which the danger to the principle is also the danger to safety. I do accept that sometimes freedom and security are intentional, but not always, and I think over-broad speech offences and other measures, like the 90-day detention, are going to be counter-productive both to the constitutional principle, but also to addressing the threat effectively. Q78 Chairman: The Law Society? Ms Marks: The Law Society of course believes that it is vital that there are effective measures to combat terrorism and recognises that the Government will want to take appropriate steps, so to the extent that there are gaps in the existing law, then, in principle, the Law Society does not have objection to new offences being introduced, such as preparatory to terrorism, and those that are suggested by clause 1 and clause 3. However, our serious concerns, as has just been indicated, are not only the nature of the drafting which is incredibly broad and we feel could have all kinds of unintended consequences, particularly the very negative and detrimental impact on the freedom of speech which of course is protected not only by the European Convention, but by our own law, but also that there is an absence of intent expressed for the principal offences in clauses 1 and 3. Indeed if the drafting were to reflect what the Home Secretary said in his press statement when removing the glorification provision, they want to make clear "our intention that the new law would be focused on those who intend to incite further atrocities". If that is what is said, in the appropriate legal language of course, then we would have far less difficulty than we do as it is currently drafted. Q79 Chairman: Liberty, if the law had been drafted, as the Law Society has suggested, with the emphasis on the intent rather than the "likely to lead to", or whatever the exact wording is at the moment, would you be happier with that as the drafting? Ms Chakrabarti: Well, I have to say that I have been particularly helped by being able to hear the discussion between yourself and the Home Secretary and I would like to be very, very specific about what we propose as a constructive way forward, having heard the Home Secretary's concerns in relation to clause 1. Intent of course has to be there in relation to any speech offence. There are some limits on free speech, I agree with the Home Secretary, even in a democracy, but with intention, it is incredibly important that the person intends when they speak for there to be some horrific outcome. Whether there is or not is not the point, I agree, so intent must be there, not the negligence test that is currently provided, and that is why we call it the "loose talk offence" even in its tighter form, so intent is crucial, but there is a second aspect which you yourself, Chair, highlighted and that is the breadth, the massive breadth of the definition of 'terrorism' which is piggy-backed on. Now, that is the 2000 Act definition which is very broad and it becomes even broader when one is thinking about historical and international scenarios, so we would say, make clear that there is intention, but also tighten up, if not the general definition of 'terrorism', at least the one that is employed for the speech offence. To be fair to the Home Secretary, he has today suggested that his difficulty with the existing law of incitement is in particular that he thinks you need to incite a specific act of terrorism. Now, if that is the evil that he needs to address by a new statutory offence, we would say to him, fine, keep intent, and it does not need to be intent that is related to a specific murder, but it can be intent to inspire and incite terrorist acts more generally, but at least tighten up the definition of 'terrorism' so that it does not, as at the moment, cover not just violence against people, but threats, let alone violence, to property all over the world. Just to be clear, the current offence would mean that if I sat here before this Committee and suggested that in my view the only way realistically that the Zimbabwean people will ever be free from the tyranny of Robert Mugabe would be by his violent overthrow, would be by, for example, people not blowing up children on school buses, and I thought it was interesting that the Home Secretary, in his responses to you, tried to tighten up the definition of 'terrorism' to go towards human rights atrocities of that kind, but it would be an offence for me to say that the Zimbabwean people should, as best as possible, avoiding loss of life, attack government buildings and the infrastructure of the State in order to bring him down, and that cannot be right. Whether the Home Secretary agrees or disagrees that it is sometimes permissible morally for people to take arms up against dictators, it surely is not right in our tradition and our democracy that comment of that kind should attract seven years' imprisonment. Q80 Chairman: So that is the view of Law Society and Liberty. JUSTICE, what is your perspective? Mr Metcalfe: In our view, there is no gap in the existing law. I am aware of the Home Secretary's comments this morning, that he feels that the CPS has advised him that incitement only relates to a specific act. I have to respectfully disagree if that is the advice that he has received. I am not sure that it is correct. In particular, I am quite concerned about the idea of indirect incitement that has been floating around since the Home Secretary's letter in late July. The current law, to be clear, covers incitement. There is no distinction in the current law between direct and indirect incitement; it covers both. If you say, "Let's blow up the number 49 bus tomorrow", that is arguably incitement to a terrorist act. If you were to say, "It is good to blow up a bus", that is more general words, but it nonetheless is capable of being prosecuted under the existing law. In both cases the obligation is on the prosecution to prove that that person intended to incite a terrorist act. Now, there is in fact a number of different offences with which a person can be charged. We simply see no gap in the existing law in relation to someone inciting violence. If you have the intention to incite violence or a terrorist act or any serious crime, then the existing criminal law of this country has a range of offences with which we are able to prosecute people. Now, the central difficulty that I think the Home Secretary would be referring to is the difficulty of evidence. If someone says something in indirect terms, that is to say, if someone uses more general or more vague language, then it becomes harder to convince a jury beyond a reasonable doubt that that person had the intention, but nonetheless it is still possible to bring prosecutions and it is indeed possible to satisfy juries that, despite the words used, the person nonetheless manifested by all their actions and words an intention to incite terrorist violence. If the Home Secretary is unhappy with the idea of intention, then in essence he is unhappy with the existing safeguards offered by the criminal law to prove beyond a reasonable doubt. These are fundamental principles and I think you cannot tinker with those without weakening the fabric of the criminal law in this country. Q81 Chairman: But whilst you say it is possible to prosecute, it has actually proved under this Government and previous governments extraordinarily difficult even to get to the stage of bringing a prosecution. Is not the reality of what you are saying that we are effectively unable to take legal action against the sort of people that I think we have agreed are out there, influencing young people and drawing at least some of them to terrorist activity? Is not the Government right, in possibly a changed environment, to tighten the law to reflect the fact that, and everybody has seen the interviews and the speeches which are taking place on television, it is actually unable to do anything about them? Mr Smith: It is absolutely right to look at it and to grapple with that as an issue, and it is a very real issue. However, the problem with this legislation, if you just look at it in structure, is that when you asked the Home Secretary his reasons for the legislation, his first one was, "We want to send out a strong message". Now, that is absolutely understandable, and he wants to send out a political message. The problem with the legislation is that it is so widely drafted that, as a number of you came in on, it captures all sorts of things that Mr Clarke does not mean it to capture. There were various examples, ANC, North Korea, we could throw in Burma and we could state the support for the contras in Nicaragua, and all of these things show that this Bill has gone too far the other way and it needs a more precise definition on terrorism and it needs a more precise definition in relation to intention. It is going to catch all sorts of people that it is not intended to, and the safeguard Mr Clarke has in there is that a judicial figure or a semi-judicial figure will actually make sure that the thing operates sensibly. However, we know from events at your own Party Conference that legislation which can be passed for one purpose, once it is in, can be used much more broadly than anybody else intends. Q82 Chairman: I hope the Committee did give a good airing to the criticisms that you have been making when we had the Home Secretary sitting there, but you are there now and it is the other way round because the danger is, is it not, that actually if we took the advice from your organisations, the Government would do nothing, yet out there in the community there are people propagating a broad support for the idea that terrorist violence is justified, is legitimate, is the right way forward and that some of those in the audience at least who hear that argument may actually get drawn into real terrorism? I need to know really, and we have already had some constructive suggestions from the Law Society and Liberty, but turning to JUSTICE now, what would you do if you were the Government to actually tackle that problem or would you just say that it is too difficult which seems to be what you are saying this morning? Mr Metcalfe: Not too difficult. It is simply wrong in principle to seek to address that problem by this kind of measure. Q83 Chairman: So how would you address it, non-legal measures? Mr Metcalfe: Well, I am firmly committed to the idea of freedom of expression and I sincerely hope that the Government is too, and I think it is a profound misunderstanding, the idea of freedom of expression, where you want to attack ideas which are reprehensible, but not themselves said with the intention of inciting violence, and try to censor expressions of those points of view because you fear that the effect of those views on people who may understand them is incitement, and that is the profound problem with this clause, with the idea of this clause because you are removing the requirement of intention and then you are in effect putting the obligation on people. Q84 Chairman: But I got the impression from you earlier, Mr Metcalfe, that actually you would not be happy with it if it did have the requirement of intention. Mr Metcalfe: Well, if it did have the requirement of intention, Mr Chairman, with all due respect, it would be identical to the existing law of incitement and I can list them now, all the different ones, and we say "law of incitement", but there are in fact a dozen. Q85 Chairman: That goes back to my basic problem, I suppose, as a Member of Parliament, that I have constituents concerned about the active promotion of terrorism which is taking place and you are telling me there is nothing legally I can do about it? Mr Metcalfe: I would say that you should be explaining to your constituents that in order to protect the values of a free, democratic society, you not only need to take action, but you also need to show restraint, and in order to protect what is free and good about this society, it means that you have to make sure not to pass laws that limit their own freedom to engage in political discussion and make contentious remarks because any one of their contentious remarks might end up being misunderstood by an unreasonable person as an incitement or encouragement to terrorism and there is no check, no legal check that you can put into this clause which would prevent that because incitement is always directed at the unreasonable person. When we speak, we do not have to fear the consequences that our words will have on someone who is reasonable, but you have to think about how your words will affect the fanatic. Q86 Chairman: It is always possible to construct theoretical concerns about what might happen, but in practice if a prosecution has to be approved by the Director of Public Prosecutions or possibly, as the Home Secretary seemed to be open to from my earlier question, the Attorney General, how likely do you actually think it is that somebody would end up in court charged with these offences who was not actually fairly actively involved in the positive promotion of terrorism? Mr Smith: Unlikely, but slightly random and very unsatisfactory. Q87 Mr Streeter: Turning to clause 4 again, the issue of acts preparatory to terrorism. It has been suggested by some or all of you that this is too widely drafted and one of the ways of combating that is to try and restrict it to a certain number of foreseen activities or actions and so on which of course is always very difficult to do under law because it is the one thing you do not specify and do not foresee which actually happens and you end up excluding it. If you want to tighten up on this clause, bearing in mind that this will all come to some of us in committee at some stage for specific action and amendment, how would you propose that it is specifically amended? Mr Crossman: Perhaps I could come in on that. The one thing I would say about clause 4 is of course that it does contain the necessary element of intent that we would like to see running throughout the speech offences in this Bill. Without coming out with an exhaustive list because the resources of an organisation like Liberty do not allow us to be able to do such a thing, there are certain things, such as, for example, moving money, financially based actions or possibly arranging meetings that might fall short of the conspiracy element which would currently be required under existing conspiracy law or obtaining items. The crucial point here, and this is not an exhaustive list, but it might be indicative of the sort of thing which could fall into the category of acts preparatory to terrorism, but the crucial point is the requirement on the prosecution to prove intent. Q88 Mr Streeter: Do you not accept that it is impossible to produce an exhaustive list ----Mr Crossman: Yes. Q89 Mr Streeter: ---- and that if you can come up with some examples, all you are simply doing is excluding the very thing which is going to happen? Mr Crossman: It is quite common in legislation to see non-exhaustive lists and that is why they are non-exhaustive, because there are always going to be ideas outside the scope of what is actually catered for in the legislation, but it gives an indication of the type of action that might be considered appropriate. The difficulty with the Bill as it is currently drafted is because it is any act whatsoever, there is no indication of the sort of act that could be referred to. Q90 Mr Streeter: What is the Law Society's view on that? Ms Marks: The Law Society's view is again to welcome the fact that the draft Bill includes crucially for this particular proposed offence an element of intent and I echo the remarks which have been made by Liberty in that respect. We were particularly struck by comments that have been made by both the Newton Committee and the Joint Committee on Human Rights which seem to suggest that for this type of offence, the problem is unlikely to be particularly assisted by the creation of more offences. Again I echo what I said before, that if there is thought or perceived to be a gap in the existing legislation, then we would not have an objection in principle to an offence of preparatory facts, particularly since the thrust, it appears, of the concern is that with the threat that the country is facing at the moment, waiting until the last moment is too late, but we too feel that ways in which this particular provision could be assisted, there are two respects in which we would like to see changes. One is, as Liberty has already suggested, a non-exhaustive list of the types of conduct that are contemplated so very minor activities, and our concern is that were there to be an atrocity, there will then be a witch hunt to look back and see who might have been involved in any particular way in any minor conduct and that is not what we feel is the intention of the clause and that should be made clear. The other is that both the Newton Committee and the Joint Committee on Human Rights indicated, and we believe this very strongly to be the case, that it is not the absence of offences which is causing the problem, appropriate offences with which to charge prospective offenders, but evidential difficulties and the Home Secretary himself touched on this and it was gratifying to hear that this is something being actively considered. Certainly the Law Society is very much taken with the view that the absolute ban on intercept evidence is causing a real problem in this area and if that issue could be addressed, then many of the difficulties that are faced by the existing legislation could well be overcome by that route. Q91 Mr Benyon: What are your opinions on the proposed banning of Hizb ut-Tahrir and Al Mujahiroun? Mr Metcalfe: Well, we are very concerned. We do not want to express a view about the specific ones. Q92 Mr Benyon: Well, organisations like them. I am not being specific. Mr Metcalfe: We are very concerned at the idea that you would proscribe organisations that express extreme views but in a non-violent way. If they are not directly or indirectly seeking to incite actual terrorist violence, then I do not think there are any real grounds for proscription. You are interfering in relation to the expression of their ideas and their right to free expression, but also their right to freedom of association. We have very broad grounds for proscription already under the 2000 Act and I do not really see that there is any basis for extending it. Because of the language that has been adopted in clauses 17 and 18, you are very much in danger of recreating some of the same problems that you had in relation to clause 1 with the revised clause because it is extremely unclear who might be making a statement that someone else might regard as incitement or encouragement to terrorism. Organisations which actually incite terrorism are already subject to proscription. This is extending the grounds for proscription beyond that to people who say things that other people might understand as incitement. Q93 Mr Malik: Just on that same point and extending it a little, if it is a global movement which has a wing in the UK and if in other parts of the world it is actually advocating violent measures to overthrow legitimate, democratic governments or other governments, what would your opinion be then? Mr Metcalfe: I think the difficulty would be that which we have already identified in our written evidence which is the difficulty with the breadth of the definitions in Section 1 of the Terrorism Act of 'terrorism' itself. You are then engaged in political discussions over which governments, which foreign governments it is okay to engage in political violence against. Again I think it is unhelpful in terms of freedom of expression to be engaged in proscribing groups. Unless you are involved in inciting violence against the United Kingdom, unless there are people involved in inciting violence against the United Kingdom or UK interests overseas or UK nationals overseas, then I think it is very difficult. Mr Crossman: Could I just make one more point in relation to that. If we are to accept, as the Home Secretary seems to have accepted, that glorification in the old draft of the Bill under clause 2 was unacceptable, it went too far, then I would suggest that you cannot keep the current drafting of the extension of proscription because exactly what that does is it includes within the definition of the organisations that can be proscribed organisations whose activities include the glorification, exultation or celebration. Therefore, what you are doing is saying, "We're going too far to make it a criminal offence for you to glorify, but if you have any connection with an organisation that does glorify, you are committing an offence". If you wear a T-shirt which has the logo of a proscribed political organisation on it, you will be committing an offence, so if glorification is going too far, you are going too far throughout the Bill and that clause should go. Q94 Mr Winnick: Recognising obviously our arguments against banning any particular organisation, like the one which has been mentioned here, do you accept, Mr Metcalfe, because you seem to be very strongly opposed to what is being proposed, that this particular organisation has been spreading the most poisonous propaganda or canvasses in many parts of the United Kingdom amongst Muslims and that mainstream Muslim organisations, though they may not be in favour of banning those organisations, confirm that that has been the position and is that not a concern which the Government and indeed Members of Parliament should have? Mr Metcalfe: Well, again I am not prepared to express views on this particular organisation. Q95 Mr Winnick: Why not? Mr Metcalfe: Simply because we are not briefed and we ----- Q96 Mr Winnick: But this organisation is notorious. I must say, Mr Metcalfe, you surprise me by saying you do not particularly want to express an opinion. Justify the organisation, so be it, but to come here and to say that you have no particular views as an organisation or as people somewhat surprises me. You must have a view as an organisation about this particular organisation. It has been around for some time and its racism is ---- Mr Metcalfe: I am afraid you misunderstand the function of our organisation. We are a human rights policy organisation engaged in human rights and law reform work. We are not a campaigning organisation or a grassroots organisation and we do not take individual cases. It is not our business to screen each and every individual association in the United Kingdom or outside it in relation to the statements that they may make. I have looked at their website and glanced at a couple of public statements that they have made. They seem to me a very extreme group, but nothing that I saw from my very preliminary glance appeared to incite violence, but I am not offering that as a categorical assessment by JUSTICE. I am simply saying that we are familiar with the group, but we make no assessment as to whether they are liable to be proscribed or should be proscribed or otherwise. Q97 Mr Winnick: Well, that is the Government's job to do that and they reach a decision rightly or wrongly ---- Mr Metcalfe: On the facts of any particular case. Mr Winnick: ----- presumably about this organisation being an organisation, but I will accept what you have said that you are not a campaigner. Chairman: Could we move on please. Q98 Colin Burgon: Could I first of all address my question to Liberty and the briefing you sent to us. You talk in your document, and you mention it several times, about undermining national unity. Now, national unity really in relation to the people we are talking about is a foreign concept and in part of your submission, and I am not quite sure how you play this one, you do quote an opinion poll which says about three-quarters of the people in Britain are quite accepting of any restriction of certain rights in order to combat a greater evil. Now, if that is a national response to the situation we find ourselves in, how are you also arguing in your document that pursuing measures like those being proposed will actually undermine national unity? There is a concept in there which I am kind of struggling with. Ms Chakrabarti: Well, let's try to unravel that. We are a human rights campaigning organisation and, if I may piggy-back on Mr Winnick's point, I have profound concerns about what I have read of Hizb ut-Tahrir, but I think we cannot drive organisations like that under ground any more than we should seek to martyr or drive under ground the BNP or other organisations of that sort. We are engaged, in my view, in an ideological as well as an operational rebuttal of those sorts of ideas. To go on then to your point about on the one hand, we as a nation, perhaps we as human rights campaigners, will accept some restrictions on our rights and freedoms, but not others, well, I take you then to the post-war Human Rights Framework that is reflected in the European Convention and in now our Human Rights Act. That does allow for some limitations on free speech, it does allow for perhaps some greater limitations on privacy during a moment of particular threat, but the situation changes and the Framework is flexible enough to allow some proportionate interference, but the rules of the game, if I may use that analogy, themselves do not change. The rules are robust and flexible enough to deal with developing and different threats from time to time. We say, therefore, that of course there is some limitation on free speech, on privacy and so on, but it should be proportionate and what we should never do is to basically give ammunition to those who say that we are a decadent, Western democracy with no values of our own, that there is something exciting, there is an alternative ideology that is certain and exciting and gives hope and expression to young, disenchanted people, particularly of black and Asian race. I feel a certain closeness to people of my generation and a certain particular, if I may say so, chill at what it is that made them so excited by this ideology and I want to say that I think, therefore, that this Framework is not just important in guiding policy-makers and police officers, but this Framework is the ideological counterbalance to this new and desperately dangerous creed. Do not drive dangerous ideas under ground; address them head on both in the even-handedness and the principle of your operational response and in the speeches and so on that you make. Q99 Colin Burgon: Because we are in a situation we have not found ourselves in before, do you accept that with the very, very complex cases that are thrown up to the police and intelligence services time is needed actually to pursue evidence, links, et cetera, and that the power to extend intention limits in those cases, therefore, is needed? Ms Chakrabarti: If I may say so, I think that the greatest problem that emerges in these cases that come from the police and so on about complexity is one of resource. If in a democratic society at a moment of great threat there is a choice to be made between injecting more financial and personnel resources into the police and security services on the one hand or doing away with habeas corpus or going into radical extensions of pre-charge detention, I say that the better and more productive and proportionate response is to provide more resources. In a sense, understandably police officers and parliamentarians obviously have different roles to perform, important, but distinct roles, and of course a police officer might think that he could always do more with more time, but I say that it is about complexity, it is about resources and the issues about international co-operation are as relevant in a complex fraud case as they are in a terror case, so I do think it would be very difficult to say that three months is okay for terrorism, but not for complex fraud and other cases that involve a complexity of evidence. Q100 Colin Burgon: Reading through JUSTICE's briefing, they make a statement, "In particular, we think it is false to suggest it is necessary to significantly restrict fundamental rights in order to protect one right in particular, the right to life". Would you not say there was a certain primacy about the right to life that it should in effect determine our response? Mr Metcalfe: Yes, there is a primacy to the right to life, but, as the European Court of Human Rights made clear in the case of Osman, involving the measures that the police officers could have taken in respect of a dangerous suspect several years ago, what the European Court said in that case was that, "Yes, the right to life is very important, but the protection of the right to life cannot be allowed to circumscribe the other rights that people enjoy under the European Convention". That is to say, you cannot abnegate all the other rights in the name of protecting one right in particular. Now, I am not suggesting that the Government does not have a serious responsibility in protecting the lives and safety of members of the public and I have a great deal of respect for the heavy task that they have in that regard, but I would also point out that there are a number of risks in our daily lives that we have to balance. If you just take the idea of the threat to the right to life or bear in mind that there were 800 murders in the United Kingdom last year and 3,000 road deaths, we do not talk about abnegating the right to liberty or the right to due process by reference to safeguarding people who die from speeding or from drunk-driving or from murder. I am not trying to be callous and I am not trying to suggest that it is not atrocious what happened on July 7, but I am asking you to bear in mind that every risk to the right to life that appears in this country does not necessarily require an extreme response. Again I am not saying that the Government is not entitled to take very seriously important measures against terrorism, but you need to balance all the rights in a society because there is a danger that if you go too far in one direction, you end up undermining what you were fighting to protect in the first place. Q101 Colin Burgon: What grounds do you have for claiming that the current limit of two weeks' pre-charge detention is the maximum period that would be compatible with Article 5 of the European Convention on Human Rights? Mr Metcalfe: Well, the case of Brogan v United Kingdom came up in 1988 and that was a case that was brought under the 1984 Prevention of Terrorism Act in Northern Ireland. In that case the European Court of Human Rights said that detention and police custody without judicial control that had lasted four days and six hours was in breach or Article 5(3) of the European Convention on Human Rights. They said that to find otherwise, to go further would be "a serious weakening of the procedural guarantee to the detriment of the individual and unpeel(?) the very essence of the right protected". It is also quite interesting, I think, to point out that last week, just as the Home Secretary was releasing his latest letter on 6 October defending his claim to have three months' detention, the European Court of Human Rights was handing down another judgment in relation to a Turkish case. This related to the state of emergency in south-eastern Turkey and the Turkish Government has a declaration of a state of emergency and has derogated Article 15 of the Convention that even in that situation detention of more than ten days without being brought before a judge and having a judicial determination was found to be contrary to Article 5(3), so that is the basis we have for saying that if you have any more than two weeks' detention, it is highly likely to be found incompatible by the European Court of Human Rights, if not by any number of British courts on the way to Strasbourg. Q102 Colin Burgon: So the Home Secretary has been badly advised, has he? Mr Metcalfe: Well, I suspect he is probably being quite well advised, but I am not quite sure that his answers may represent the full extent of the advice that he has received. Q103 Mr Herbert: Can I just direct my questions to Liberty. You do not object, do you, to the principle that there are circumstances in which it is necessary to detain suspects without trial? Ms Chakrabarti: Well, there are circumstances in which it is necessary to detain suspects without trial and every time a suspect is arrested for a period he is of course detained without trial. Article 5 of the Convention says that he should promptly be charged and then, beyond charge, he should be tried as soon as is reasonable. If what is being said to me is something bigger than that, if what you mean by your question is that there are circumstances in which there is such a threat to the life of the nation, Parliament has been obliterated, the fuel supply and the food supply, what I believe to be a truly temporary emergency situation of that kind arises, then of course the Convention itself provides for a derogation mechanism and of course that was a mechanism that the Government sought to employ in the context of internment or lengthy detention without trial in the whole Belmarsh scenario. What I would say about those sorts of cataclysmic moment, the moment where those in power declare the state of exception where, for a time, the rulebook is truly put aside is that if moments of that kind are adopted too easily and in an unending war or an unending emergency, that is incredibly dangerous indeed and that is effectively the end of our society. Moments of that kind should only be entered into as the very, very last resort, not just because we have been attacked, not just because people's lives have been lost, but because the State effectively cannot function. Q104 Mr Herbert: In your brief you say, "The State must be permitted the ability to detain for a reasonable period without laying charges to allow investigation. Up to this time that period has been 14 days for terrorist suspects", a clear indication that you support the existing period of 14 days. Is that right or not? Ms Chakrabarti: I am not sure that I am going to enter into the auction of ----- Q105 Mr Herbert: Is the 14-day period justifiable or not? Ms Chakrabarti: I personally have concerns even about 14 days, but I do accept in principle that people are arrested and the original question that you put to me was whether I accepted that people have to be arrested and detained for a period prior to charge and trial. Yes, of course I do. I think 14 days is quite lengthy if you compare it to the four-day maximum for crimes, such as murders and rapes and complex fraud. That in itself is a lengthy period, but I do not think it is helpful to enter into bidding in an auction for what period between 14 days and three months would be acceptable. What I think should be done instead is to look at whether any extension from the status quo is justified and what more proportionate alternative policies might be adopted. Q106 Mr Herbert: But you used this quite dramatic language and you talked about doing away with habeas corpus. My point is that the existing law under the Criminal Justice Act, because of the 14-day period, in your language, does away with habeas corpus. Ms Chakrabarti: No, that is not my view. Mr Crossman: Sorry, I wrote the section that you are reading from and if there is any confusion about what I was saying, I was simply stating that the current law allows for 14 days' detention in terrorism cases. Now, when a Bill is introduced where the Government and the Home Secretary are suggesting that that be increased to three months, I am hardly likely to turn around and start suggesting that 14 days itself is too long. That was simply stating what the current length permissible is now. Q107 Mr Herbert: No, it was not. In your brief you say that, "The State must be permitted the ability to detain for a reasonable period without laying charges". Mr Crossman: That is right of course. Ms Chakrabarti: That is right. I agree with that. Q108 Mr Herbert: Can I move on. The police's contention is that they need more time in order to be able to assemble the evidence and Liberty's response to that is that the police should have more resources, not more time, but more resources. However, the police explicitly say, do they not, in the anti-terrorist branch justification for making a case for change that in particular in relation to the de-encryption of the vast amounts of data this is not primarily a resourcing issue, but one of necessarily sequential activity, data-capture, analysis and disclosure. Is that not a point that we should take seriously and is there not a fundamental difference between the fraud investigations which you have described and the kind of offences which we are talking about in that the latter could potentially involve the very grave loss of life? Ms Chakrabarti: That is certainly true, but in relation to complexity and just to get to the heart of your question, if I may, on de-encryption, we believe that it is perfectly justified for the police to go to a judge and say, "We believe that we need a de-encryption key in order to pursue this investigation. The suspect will not turn it over. Please order that they do" ---- Q109 Chairman: Would you please answer Mr Herbert's point where he has fairly quoted to you a statement from the head of terrorist operations in the police, saying that it is not primarily an issue of resources? Ms Chakrabarti: Well, I am afraid that I disagree. Q110 Chairman: So Liberty knows better? This is quite an important point because the debate that is taking place here is that the Government should not do this because they could do it in other ways and you are saying to us that it is about resources. The people who are advising the Government are saying it is not primarily about resources and Mr Herbert is only wanting to establish how you have your opinion, where it comes from. Ms Chakrabarti: The Prime Minister once famously said, "We asked the police what powers they wanted and we gave them to them". I humbly suggest that is not the appropriate way for democratic politicians to behave. I merely suggest that there may be more proportionate ways to address the police's operational concerns, like the point about interview post charge, like the point about de-encryption, like the point about more resources when all of these should be looked at far more seriously before such an extension of pre-charge detention. Q111 Mr Herbert: In France, as I understand it, suspects can be detained for up to four years on similar charges. Is that approach, which I imagine you object to, compatible with the European Convention? Ms Chakrabarti: I am not an expert on French law. Mr Metcalfe knows a bit more than me, but I do not think that it is four years pre charge. I think it may be four years pre trial, but not pre charge. Mr Crossman: In our briefing we did not make a statement as to any particular length of time that we thought would be Article 5 compatible or not Article 5 compatible because we were aware that different countries have different time lengths. What we are saying is that this Government should need to justify any extension in the UK. Mr Metcalfe: We are particularly concerned about the idea that the Home Secretary has suggested that there might be judicial control and what he is trying to model it upon is the French, the Italian and the Spanish jurisdictions that he has talked about. In the French system in particular, the French examining magistrate has a much more intimate role in the investigation process. They are in fact in charge of the investigation. They interview the witnesses, they assess the evidence for themselves and they in fact in most cases take the decision whether the person is to be charged and prosecuted in the first place. Now, if you want to import that system into the British model of justice, then you have got to adopt also the French style of training magistrates, giving them the specific background training. You train to be a judge in the way that you train to be a lawyer in France, so the model is very different. What the Home Secretary is talking about is importing a notion of judicial control without any of the background of experience of any of the judges in this country. There has been some suggestion that if you upped the level of seniority of judge in this country, then that might provide a better safeguard, but even the most senior judge in this country does not have the same degree in expertise of conducting an investigation as the most ordinary examining magistrate in France, so I think it is highly inapposite for the suggestion that the French model should be transplanted into the English adversarial model without also importing the same safeguards that the French enjoy. Mr Smith: You have to be totally careful about cultural pick-and-mix, it seems to me. I have sat with the juge d'instruction and it is just an entirely different process. You sit there and the file gets bigger and bigger. It is a completely different role. Q112 Mr Clappison: Can we just have a straight answer to the question please. How long can somebody be held in France before they are charged? Mr Metcalfe: My understanding is that they cannot be held for more than 48 hours. I am not offering you gospel on that. I am not an expert on French law. Q113 Chairman: But the practical reality is that in France somebody can be held, charged very early and then held for an extremely long period of time before they are brought to trial and that does not fall foul of the European Convention. Mr Metcalfe: It happens in this country too, that once you have been charged and if you are not granted bail, then you can be detained for quite a lengthy period. Ms Chakrabarti: But the Convention makes an important distinction between the prompt charge and the period between charge and trial and that needs to be remembered. The charge is the bare minimum of knowing why it is that you are detained. Q114 Mrs Cryer: If the safeguards in the draft Bill were to be strengthened, for instance, by requiring the application to be heard by a High Court judge rather than a district judge, would this dispose of some of the compatibility issues? This question was put to the Home Secretary and he sounded to me as if he was quite sympathetic to these being strengthened. Mr Smith: I think the answer to your question is no, but it would be desirable. Q115 Chairman: And the Law Society would say yes? Ms Chakrabarti: Well, we would say no. We have been here before, if I may say so, Mrs Cryer. We have been here before with Belmarsh which was supposed to be okay because judges were involved. We have been here before with control orders which are supposed, some would say, to be okay because judges are involved. A process is only fair where a judge is presiding over something that is a fair process. Just importing the fig-leaf of judicial involvement does not turn something into a fair and proper legal process. What is the judge going to look at? There is not even a charge. I would suggest that in this lengthy pre-charge detention phase, all the judge can do is to say to the police, "Have you really made enquiries of the Egyptians yet? Why is it taking you so long?" What he cannot do is to substitute for the fact that there is as yet no charge, no particularised allegation against the individual concerned. Q116 Mrs Cryer: So you feel that having a High Court judge would be preferable to a district judge? Mr Smith: Yes, that was the distinction I made. The answer to that question is yes, it would be better and there has been, I have forgotten the name of it, but a horrific case in relation to an Anti-Social Behaviour Order which was made by a district judge and then had to be overturned and then became a cause célèbre in the Court of Appeal which shows how badly these things can work. District judges one has immense respect for, but a High Court judge is the minimum, so the answer to your second question is yes and to the way you originally formulated it is no, it is not enough in itself. Q117 Mrs Cryer: We have already talked about increased resourcing and it is a little bit of a repeat but I wonder if I could put this to the Law Society specifically. In your memorandum, you argue that "it appears to a large extent that the call for an extension of detention powers relates to the question of resources". What evidence do you have to back up this assertion? What scale of increased resourcing do you think is necessary? Ms Marks: Our paper actually referred to the information available and quoted not only the annex to Charles Clarke's original letter to his opposite numbers in the opposition parties, but actually we have also had the benefit of seeing the information that was supplied by the Assistant Commissioner Andy Hayman on 6 October. Some of the case studies he gave in his own evidence were, I found, extremely interesting. For example, he referred to one case where it was the sheer weight of material. In another, in his hypothetical study and this was a hypothetical one, he said that a targeting document was found on the 50th computer to be examined in the seventh week which to me indicates that if there were 50 people looking at 50 computers instead of one, that could have been the first computer on the first day of the first week rather than, as he suggests, looking at them sequentially. If this amount of material is seized, I respectfully suggest that it is almost impossible to know what the sequence is until you start looking at it, so you really need a large number of people to be looking at it. What I thought was particularly striking was one of his early examples where it was a real case study and it was sub judice, so he could not give much detail, but what he could say about it was that if the decision to charge could have been delayed while the investigation developed, things might have turned out differently and went on to say, and this is the final point, that the case is to be heard in January 2006. What that seems to suggest is that once a charge has been placed, that is the end of the investigation. We all know that is not so and we only have to think of some of the more serious criminal offences, serial murders, serious fraud cases and so on, the investigation continues even after charge and we can see no reason why the investigation could not continue after initial charge and if further evidence emerges, further charges can be put. That was something which we suggested in our evidence would be a way of dealing with this particular difficulty. After all, we would stress, in order to arrest an individual, there have to be reasonable grounds in the first place, so if within 14 days it is not possible to substantiate those reasonable grounds sufficient to replace a charge, let alone bring them to charge, we suggest there is something seriously awry with the arrest in the first place. Q118 Mr Herbert: Following that reply, I just wanted to establish what these lesser offences might be. One of the suggestions which has been made and I asked the Home Secretary about was that if there was not sufficient evidence to justify a charge under these terrorist offences, there might be lesser charges which would then enable detention until the evidence could be gathered to upgrade the charge. This is a suggestion which all three of you have made, so what are these lesser offences? Mr Metcalfe: Well, I think it is helpful to point out that what the Newton Committee made reference to was that many of those involved in terrorist offences or suspected to be involved in terrorist offences are also engaged in a great deal of low-level criminality in order to fund that and they gave examples of people who are involved with credit card fraud. That is not an unusual occurrence. Q119 Mr Herbert: The sort of 'Al Capone' point? Mr Metcalfe: Exactly. Ms Chakrabarti: Also there are low-level terrorist offences. There is being associated with a terrorist organisation, there is funding terrorism, supporting terrorism, possession of material. There is a whole range, a whole hierarchy of offences within the special terror offences regime and of course these other offences of fraud and so on which Mr Metcalfe refers to. Q120 Steve McCabe: I just want to ask how big a police state with how many additional police officers and intelligence agents do you think we need to have before organisations like yourselves will be satisfied that our human rights have been protected from potential terrorist threats and can you give me any idea how much it is going to cost? Mr Metcalfe: I am afraid I cannot give you a cost estimate, but I can state with some confidence that I would be far happier with a large police force and strong ---- Q121 Steve McCabe: Yes, maybe, but I just want to know how big? Do you want a policeman on every corner, for every household? Mr Metcalfe: Well, let's just say a large police force with strong safeguards on human rights than a small police force with no human rights. Mr Smith: I think the truth is that the police have worked for a long time with what they have got at the moment and the case really to extend this to three months is not really made. The police produced the example that on the 50th computer there was the damning, smoking gun, if I can use that sort of mixed metaphor, but what about where you go through the 50 computers and there is not a smoking gun and you move inexorably to a situation where any one of the police officers, whatever their number, just says, "Round up the usual suspects". That is not the kind of state we want and, as sure as eggs is eggs, if what we want to do is to stop there being another outrage like 7 July and to detach people of violence from their surroundings, then to go down this way where you can pick up people on virtually no evidence, hold them incommunicado for up to three months and then sling them back, which is what will tend to happen because they will not get the evidence and we have had the statistics on this and we know that there 20-odd prosecutions on 750 arrests, the dangers of enacting this proposal are enormous and they are irrespective of how many police officers we have. Q122 Mr Winnick: Mr Metcalfe, you make the comparison about the right to life between those who were destroyed in the mass murder of 7 July and road accidents. I do not, and presumably nor do my colleagues, see any possible comparison. I am just wondering if you or Mr Smith, though perhaps it is not Mr Smith's own views, but I wonder if you, Mr Metcalfe, would like to explain that to the close relatives of those who were murdered or, for example, the woman who had both legs amputated and tell them that there is a comparison between what happened on 7 July and what happens in a road accident. Mr Metcalfe: Let me be clear, that those who have suffered losses of their family and friends and relatives on 7 July have my greatest sympathy and I think it is absolutely right that the Government should take the terrorist threat to the United Kingdom very seriously. What I would say to those who were victims or relatives of victims would be, "Yes, the Government is right to take action, but we are concerned that what the Government is doing is an over-reaction and your friends and loved ones lived in a society in which they enjoyed freedom of speech, freedom of expression and so on and it is very important for us to continue to safeguard the values under which they lived and not to give way to legislative panic, not to give way to hasty measures which actually have the effect of undermining everyone's freedoms". I would say that in relation to the comparison I made between victims of terrorism and road deaths, yes, it is a horrible way to die, but I am pretty sure it is a horrible way to die in a car crash as well and we do not want the Government to be focusing a disproportionate amount of legislative resources and using this as a justification simply by reference to the right to life. If you are going to treat every life equally, then you have to treat every threat to life equally. Mr Smith: I think the general point is that the response must be proportionate, targeted, effective and precise. Chairman: Thank you very much indeed. It has been a very useful session and I hope that the transcripts will help to inform the debate which will take place when the legislation is introduced in the House of Commons. Thank you very much indeed. |