Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 1-19)


24 OCTOBER 2005

  Q1 Chairman: Good afternoon, ladies and gentlemen and thank you for coming to meet with us, Home Secretary. This is the first of two evidence sessions in the initial phase of our inquiry into counter-terrorism policy and human rights. We are examining the human rights implications of the legislative and non-legislative measures proposed by the government since the bombings of 7 July and the attempted bombings of 21 July in London. We are not investigating the events of those days or the shooting of Mr de Menezes the following day, 22 July. Nevertheless, for the avoidance of doubt, I should make clear at the outset to our witnesses and to the press and public that discussion of those events is in any event prevented by the sub judice rules of both Houses. These rules prevent discussion in Parliament of cases which are actually before the courts, including the Coroner's courts. The aim of the rules is to safeguard the right to a fair trial or a fair consideration of events at an inquest. It is also important that Parliament and the courts give mutual recognition to their respective roles and do not interfere in each other's affairs. In addition to the matters I have already mentioned, the sub judice rules apply to the actual case studies set out in the briefing note submitted by Assistant Commissioner Hayman to the Home Secretary on 6 October and other active criminal or civil proceedings. It follows that there should be no discussion of those cases and I will intervene if necessary to ensure the sub judice rules are not broken. I hope everybody understands why we cannot get into the detail of some of the things that have been particularly in the news. Perhaps I could start, Home Secretary, by asking you a general question and put the general point that we very clearly recognise that the state is under various positive obligations to take effective measures to protect the safety and security of people within the jurisdiction against the threat of terrorist attack and to bring the perpetrators to justice. We also welcome your statements that in taking such measures the government intends to comply with all of its international human rights obligations. Can we also proceed on the basis that you are in complete agreement with the declaration of the UN Security Council, echoed by the Committee of Ministers at the Council of Europe, that states must ensure that any measure taken to combat terrorism complies with all their obligations under international law, in particular, international human rights, refugee and humanitarian law?

Mr Clarke: Yes. I very much appreciate being invited to give evidence before the Committee and before your chairmanship. We have had a number of very good sessions and I am looking forward to continuing that in this session of Parliament. I think the role of the Committee is very important as we try and address these very difficult questions. The short answer to your question is yes. I think it is important that any legislation that we propose is consistent with both the European Convention of Human Rights and also human rights law in general. In terms of the United Nations, the declaration of the Security Council in September of this year on terrorism I think was a very powerful and important document which I subsequently discussed with Kofi Annan, the Secretary General of the United Nations, about how we could work to take it forward. I think the best way to protect our human rights in this country is by ensuring we take measures of the type that I am putting before Parliament.

  Q2  Chairman: Can I go on to refer to your speech to the European Parliament when you made a number of proposals for countering the terrorist threat? You accepted it was incumbent on the government, because we are advocating change, to make the case that measures will in fact make a practical difference. Do you accept that the same onus rests on the government to demonstrate to the Parliament here that the necessity for the measures it is proposing, for example in relation to the creation of new criminal offences, by identifying the gaps in the law which exist and providing evidence to demonstrate that the law's protection against terrorism is inadequate?

  Mr Clarke: I do accept that. In fact, much of the current law that is proposed and has had its first reading and will be debated in the Commons next Wednesday of this week is designed to make our law compliant with the Council of Europe proposals in relation to terrorism. The arguments, for example, are clearly that if we are going to get to prosecution of cases then offences such as acts preparatory to terrorism need to be brought within the remit of the law. I very much accept what you say. There is however quite an important qualification to put into that, which is that we are working all the time to prevent acts of terrorism and acts of terrorism succeeding, proving that a particular legislative measure or a particular clause in a Bill or a particular power is the single thing which has prevented a particular event or proposed attack taking place. It is not always easy and I do argue that there is a range of measures which are needed to make it more difficult for terrorists and more easy for us to protect our society. The basic test ought to be necessity, as you implied in your question. I should say in candour that proving necessity, which is a very strong word, in relation to any particular measure is never easy.

  Q3  Chairman: Can I ask you what assessment you have made of the risk of tougher measures being counterproductive in terms of perhaps pushing people towards those who would evilly wish to recruit people for terrorist activities?

  Mr Clarke: We have made a great deal of assessment of that particular question. We have worked closely with the Muslim community in particular in this context but more generally the faith communities in order to try and ensure that, in so far as we can achieve it, the measures that we propose could not lead to any generalised counter reaction. I believe that is true of the measures that we are proposing, that they do not lead to a counter reaction of any type which would make it more difficult for us to protect ourselves against terrorists and extremists who by definition are a very small minority within a wider community. The same applies when one is talking about a particular event or a particular situation. I answered the question first with reference to the generality of proposed legislation but of course, when you come to a specific measure as well, it is very important to have in mind precisely the balance of considerations that you have just stated. I have discussed in length with the police that particular qualification and both they and the prosecutors and others are exactly of the view that the balance that you set out in your question is something that has to be in mind at the time that any particular measure is proposed under this proposed legislation or indeed under current legislation as well.

  Q4  Chairman: Earlier this month there was some speculation in the press that the government would consider departing from the Human Rights Act, either through an amendment to the Act or derogating, if it was found that the new proposals were not compliant. Would you like to comment on whether in fact that is what the government's intention is?

  Mr Clarke: It is not what the government's intention is. What we are doing—I said this in the speech to the European Parliament which you referred to a second ago as well—is seeking to inquire whether the jurisprudence which has emerged, in particular the Chahal case, in the European Court, is the jurisprudence which reflects the modern situation in the best possible way. To that event, we have joined a case which is taking place between an Algerian and the Dutch Government in front of the European Court, with the agreement of the Dutch Government, to ask the European Court to look again at the Chahal judgment and how it would operate—I emphasise not to withdraw from the Convention or to amend the Convention or any other legal step of that kind, but to ask the Court to reconsider its view on the Chahal judgment in the light of the current circumstances. I am delighted to say that a number of other European governments have also joined that case to make the same request so I hope that in the reasonably near future the European Court will consider whether the jurisprudence which took place and concluded with the Chahal judgment, you will recall by I think a 12:7 vote in the Court at that time on that particular case, should be relooked at in the current circumstances. I think that is the best way to proceed as far as the European Court is concerned. It is also the case that we are pursuing memoranda of understanding with a number of governments with a view to providing a secure return to a particular country without threat of violating Article 3 of the European Human Rights Convention. I think agreements have already been concluded. I hope more will be concluded. I hope the courts in this country and ultimately the European Court will give due weight to such agreements when they are made in looking at any particular case, but of course the judges must independently make their own decision in relation to that. The only generalised observation I would make is that it seems to me important that when everybody, whether it is politicians, lawyers, the media, whoever, looks at these appalling cases and decisions that have to be made they also look at it taking regard of the strong commitment of citizens throughout this country that human rights apply also to the person travelling on the underground to work, as they do to a person charged in relation to a legal process. All those rights need to be taken into account. I believe that the courts understand that very well and will operate accordingly.

  Q5  Lord Campbell of Alloway: I wholly approve, if I may say so, and accept what you said about the attitude of government to the European Court. It does not seem to me that there is very much alternative to that if one is going to have an effective development of the law but I wanted on that to try and ask you a very simple question which is: what is the essence of the gap which the clauses in this Bill are proposed to deal with? Leave aside internet evidence. Leave aside evidence obtained by torture which other Members of the Committee will no doubt speak about. What is the essence of the need, on the assumption that the measures taken are broadly compliant with the human rights requirements?

  Mr Clarke: The core of the Bill from the point of view at which you ask the question is in clauses five to eight, those dealing with preparation of terrorist acts, training for terrorism, powers of forfeiture, attendance at places for terrorist training. Those are the kind of measures which we have not had explicitly in the law before that allow us to address the circumstances which we face in certain other regards. In addition, the proposed offences around encouragement of terrorism, effectively clauses one and two of the Bill, make it an offence essentially to incite terrorism in a variety of different circumstances. The reason for carrying that through is again to protect human rights rather than to attack them, I would maintain. I may not have understood your question precisely but that would be the answer as I understood the question. Did I miss the point that you were trying to make?

  Q6  Lord Campbell of Alloway: No, that is fair enough, Secretary of State, and I understand what you are saying. In what way is our extant law deficient in that regard? Is it seriously deficient?

  Mr Clarke: We are in a difficulty of judgment here and it is this: it does not take very many people working together or very many plots, if I can put it like that, to create a very real threat for all of us, so we need where there is a plot or a plan to commit a terrorist act to have whatever plans we can to deal with that particular threat when it comes. There have been occasions before 7 July and indeed after where there have been potential attacks being prepared which we have been able to stop, I am glad to say. It is not an enormous number of such attacks but even a small number of such attacks is a very material threat to our whole civilisation, as we saw on 7 July and, to a lesser extent, 21 July. I do not wish to imply that there is an enormous number of such cases, but I do wish to imply that that such cases exist and we need to strengthen our law to deal with them. We are not attacking the human rights, if this is your question, of a very large number of people; we are talking about a very small number of cases. The evidence we have demonstrated, for example, on the controversial aspect of the 14 days before charge, is of a very small number of cases being involved at that point.

  Q7  Lord Campbell of Alloway: What I find it difficult to identify is where the extant law is deficient and would be substantially improved by the proposals in this Bill. We have a conspiracy law. I will not go through the panoply of the laws but the extant law broadly speaking, properly applied, is said to be—it seems to me to be so—broadly satisfactory, apart from the concessions I have made.

  Mr Clarke: I understand the concessions you have made. I have tried to answer. I obviously have not answered to your satisfaction. When we talk about preparing terrorist acts, that is quite explicitly an offence which we name, which is not included in the current legislation. Training for terrorism, clause six of the Bill: a person commits an offence if he provides instruction or training in any of the skills mentioned in subsection (3) and so on. There is a whole set of issues. These are things which are not in the current law which we are proposing be included in the current law. I may not have understood you completely correctly. If you then ask is this a substantial group of people caught in this—let us give another example—attendance at a place used for terrorist training. If somebody goes to a place used for terrorist training, at the moment that is not of itself a breach of the law of this country. We are proposing that it should be a breach of the law of this country.

  Q8  Lord Lester of Herne Hill: I want to cover some specifics on the glorifying of terrorism. I think we quite understand what you have said about the parts dealing with acts preparatory to terrorism and the need for new offences. I appreciate that you have improved the position since the draft Bill by making glorification of terrorism dependent upon direct or indirect incitement to terrorism. I think the Committee still has some concerns, first of all, about the necessity for Clause 1 and the related clauses about proscription. So far as the existing criminal offences are concerned, they seem to us to be very wide. I will not go through them now. It may be not convenient for you to answer my question right now but perhaps you could write to us. We cannot see exactly what the gap is on glorification that needs to be filled by the new offences.

  Mr Clarke: I am happy to write if my answer is not satisfactory to the question you put, but my understanding is very clear. It is that at the moment the law outlaws incitement to commit a particular terrorist act. If you say, "Please will you go and blow up a tube train on 7 July in London?" I believe the current law deals with that particular situation. If however the law simply says, "We think blowing up tube trains is a good thing" for the sake of argument, or, "We encourage everybody to go and blow up tube trains" or, "We encourage a particular group of people to go and blow up tube trains", that is not of itself currently incitement in terms of the current legislation, as I understand it. The purpose of Clause 1 of the Bill is to outlaw and make illegal that generalised incitement to terrorist acts of that type. I think that is a very reasonable thing to do. Why? Because I think that there are forces that exist who seek to draw people, like some of the people who committed those acts on 7 July, into their web, as it were, by inciting or glorifying terrorism in general rather than by inciting people to commit a particular act. It is that difference between the general incitement and/or glorification rather than the specific act which I believe this clause of the Bill is designed to address.

  Q9  Lord Lester of Herne Hill: Could I then ask how on earth we can secure reasonable legal certainty in the definition? The definition at the moment is, I am sure you will agree, extraordinarily broad because it talks about glorifying the commission or preparation, whether in the past, in the future or generally, of the offences and then glorification includes any form of praise or celebration. If you take the old ANC problem, for example, if I were to make a speech publicly saying, "I admire the ANC for the armed struggle during apartheid and I would now say that there are other situations in the world where democracy has completely failed and where the only alternative is the armed struggle", as I read it, I would be committing a serious criminal offence punishable by seven years' imprisonment. How do we enable the citizen to know with reasonable certainty what statements of that kind are or are not criminal?

  Mr Clarke: It was put to me by somebody the other day that arguing for change was of itself a breach of the legislation. I do not think that can possibly be the case. There is no intention that that should be the case. I do not believe the current wording allows that to be the case in any respect whatsoever. You then come to what are the means of change which are advanced. I will not bore the Committee with this now but I have a view about how the world has developed in these situations over the past 30 years which means that we can talk about this in a slightly different way than we could 30 years ago, simply because democracy is so much more widespread around the world and because most of the democratic changes which have taken place have taken place as a result of political action rather than any kind of "military" action. If one were to say to me, "Is blowing up a tube train, a bus or whatever in order to achieve this change, whatever it might be, something that is acceptable to advocate?" I would say no.

  Q10  Lord Lester of Herne Hill: I am sure we would all agree with that but my question really is narrower than that. Would you agree with me that with serious criminal offences there needs to be reasonable legal certainty about what acts do or do not constitute crimes? Is it not important therefore, if you do agree, to have a definition in Clause 1 read with the other bits of the Bill that gives reasonable legal certainty?

  Mr Clarke: In principle I certainly agree with you. I do not mean this in a cavilling or a debating way but there are a very wide number of legal opinions even in these Houses of Parliament on what would or would not be a particular offence in a whole variety of types of circumstance. There are a whole range of legal arguments which comes in on all sides of that argument. Would I would acknowledge to you, Lord Lester, is that if the argument is that we can achieve greater legal certainty by amending the legislation in a way which took us towards greater certainty I would look at any proposals of that type. The argument that says we somehow should not bother ourselves if people are inciting terrorism in general and it is not really a matter which we can define clearly enough in law; therefore we had better leave it alone I could not associate myself with. I think it is necessary to try and address that.

  Q11  Lord Lester of Herne Hill: Can I finally ask a question which is related to this? We are also talking about proscribing organisations for glorifying terrorism. Are there really quite serious free speech implications when you close down an organisation which has a political mission that may include an armed struggle in an evil and unspeakable country? I do not mean bombing civilians but let us say killing members of the military using their own guerrillas to do so, whether in Latin America or Iran.

  Mr Clarke: If the argument were to be that it is acceptable somehow to blow up a bus in Tehran or blow up a military post in Tehran, for the sake of argument, I simply do not accept that. I do not think that is the way in which change comes. If you look at a wide range of different circumstances I can substantiate that in reality. If it is argued that glorification or incitement to terror is a necessary concomitant of the ability of somebody to speak freely about the process of political change in a given part of the world, I would need that to be proved because I do not think it is the case. I think it is perfectly possible to argue for change in Iran without saying that terrorist acts are the way to do it.

  Q12  Baroness Stern: Can I ask you about the definition of terrorism in the Terrorism Act 2000 which is very wide ranging? Any violence, including damage to property, designed to influence the policy of any government anywhere in the world. That being the definition, is it your view that anybody who advocates political violence in any state, no matter how brutal or repressive, will be committing the offence of encouraging terrorism? For example, if somebody in Uzbekistan said, "Let's go and pull down the posters of the repressive president" that is presumably damage to property. In your view, is that advocating political violence?

  Mr Clarke: No. I do not think pulling down posters is political violence. Blowing up a bus, to give that example again, is political violence. I agree with you—this is where I concede a point to Lord Lester in the question he asked—that the question of where on this spectrum between tearing down a poster and blowing up a bus a particular act falls can in some circumstances be difficult. I do not think it is as difficult as it seems. To suggest that tearing down a poster is terrorism simply would not be substantiated by anybody in any circumstances. To suggest that blowing up a bus is not terrorism, on the other hand, would also be very difficult to argue. Though I agree it is possible in this great range of potential acts that one could conceivably describe to say there are some in the middle of this range where there could be an area of difficulty of judgment, I do not think most acts would have any difficulty of definition at all.

  Q13  Baroness Stern: Do you consider that the broadness of this offence—it may not be tearing down posters but suppose it is breaking the windows in the Ministry of the Interior—is going to stop people discussing and debating what to do about trying to restore democracy in oppressive regimes?

  Mr Clarke: In most cases it is a question of establishing rather than restoring democracy in the world at the moment because the striking feature of the world over my lifetime has been that, over whole swathes of the world, eastern and central Europe, southern Europe, South Africa, southern Africa, Latin America, central America, a democratic regime is now far more commonplace than was the case 35 years ago. I certainly think it is perfectly reasonable to have discussions about the right way to make change in any given circumstance but then you say to me what is my attitude to inciting changes in terrorist methods and my attitude is against it. I think the law should be against it.

  Q14  Lord Judd: You have an onerous responsibility to protect the people of Britain against terrorism and that is a human rights obligation. In doing that you must not inadvertently, it seems to me, aggravate the danger. If there is somebody in Britain saying that the daily experience of people in Chechnya for example is harassment, torture, brutality, disappearances, there is plenty of evidence that this is done by state agents—you can say acting without authority but who knows?—and who will in that situation say, "Look, there really is no alternative; we have to be able to do something to combat what is happening to our people", is not the dividing line here a bit difficult?

  Mr Clarke: We always find ourselves in very difficult language about this. The language you used in your question just now was, "do something to combat" the evils that you describe by hypothesis and perhaps in reality in Chechnya. There is absolutely nothing in this legislation of any description which says that people should not do something to combat an ill of that kind. If however you then say that it is not just doing something to combat; it is blowing up a school in Chechnya, for example, which is not so far from reality; do I think that is an acceptable way for people to advocate change in relation to Chechnya, no, I do not. I do not think blowing up that school Bezna, whatever you say about the Russian relationship with Chechnya, was an acceptable way for people to proceed. I think that advocating terrorism in those circumstances, killing children and so on, is not an acceptable way to proceed and I think it should be outlawed.

  Q15  Lord Judd: We would all agree that to blow up a school is despicable, heinous and also politically misguided because it is totally counterproductive in terms of the cause which people may claim justifies it; but there are lots of other things that people in desperation may feel they have to do against, for example, organs of the state because of what the organs of the state are doing to them. This is where it seems to me you have to be very careful that you are not actually aggravating frustration, aggravating the desperation of these people into situations in which they can be manipulated by extremists.

  Mr Clarke: I 100 per cent agree with that and that is why I answered Mr Dismore's question in the first tranche of questions in the way that I did. Extreme care has to be taken using the proposed powers in this legislation both in general—ie, the passage of legislation itself, the way it is passed and the way it is discussed—and also in particular when it comes to any particular proposition I agree with you very much indeed. One of the most damaging things would be to have any growth of frustration, alienation or whatever word one cares to use, as a result of the application of the legislation. I just want to make one further point, perhaps particularly for you, Lord Judd, with your distinguished record of fighting for democracy over many years in relation to many parts of the globe. I do think we are dealing with a terrorism here that is qualitatively different from the anticolonial, the freedom struggles, which were in a sense the characteristic of the 20th century and were the children of enlightenment thinking; compared to the kind of terrorism we are now trying to address, for example, on 7/7 and elsewhere which is not about some kind of liberation struggle, where there has been an argument about what the appropriate tactic might be, but is actually about the destruction of every part of our democracy and to destroy all the advances since the enlightenment. It is to destroy a free Parliament, a free economy, a free society and so on.

  Q16  Lord Judd: This legislation is about action anywhere in the world.

  Mr Clarke: Indeed. I simply give the context that I think we should bear in mind the particular form of terrorism which we are particularly trying to address at this time.

  Q17  Lord Plant of Highfield: I would like to ask you a couple of rather specific questions about the draft Bill. The first is to do with the role of intention and the second is to do with the idea of danger. You have said in the House of Commons on 20 July that you wanted to create an offence of indirect incitement to terrorism which will enable the UK to ratify the Council of Europe Convention on the Prevention of Terrorism. That seems to be your aim. You also said in the same statement on 20 July, "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." Given that you want to sign the Convention and your own initial statement about the Bill that you were planning to introduce did insist on the idea of intention—as you said yourself, it was an important qualification—I am now rather puzzled why in Clause 1 of the Bill there is no specific reference to intention. As it is presently defined, the state of mind which must be proved by the prosecution is knowledge or belief that members of the public are likely to understand the statement as a direct or indirect encouragement or other inducement to an act of terrorism; but that falls far short of a requirement of a specific intention to incite the commission of a terrorist offence. I wonder if you could tell us exactly why this strong insistence on intention in your 20 July statement seems to have evaporated somewhat in the Bill. Perhaps it might be useful if I outline the second question. In the Council of Europe Convention there is a reference to not only intention to incite but also "causes a danger that one or more such terrorist offences might be committed." There is a problem I think in the sense that the idea of danger has also ebbed away in the Bill. I wonder, firstly, why this is so in both the intention and the danger case and, secondly, what implications those circumstances will have for signing the Council of Europe Convention.

  Mr Clarke: That is a very interesting pair of questions. Our assessment is that we have drawn up the clauses in a way which enables us to implement the Convention correctly. It is a qualification I always make and will do so in the House as well: if there is a better wording either in the Commons or Lords which makes this point, we are certainly happy to look at it. There is no intent to use that word on my part to shift the ground between 20 July when I made that statement in the Commons to which you refer and the publication of the Bill. As far as the requirement to show intent, our analysis is that an absolute requirement for intent could render the encouragement or glorification offence virtually useless, since proving that somebody has intent, if he or she denied it, would be almost impossible. The efficacy of the clause in those circumstances would be very difficult. That is why we have set out the requirement that the person publishing the statement or causing another to publish it knows or believes or has reasonable grounds for believing that the statement is likely to be understood as encouraging terrorism. If there were a concern and if you are articulating a concern that the way we have done it leads to a doubt as to whether we could sign the Convention, I would be concerned about that but our view is that that is not the case. I am sure that is one of the matters we will discuss; similarly in the case of the danger issue. It is exactly the same issue. If the court takes the view that this test is met—that, is that the public to whom it is addressed reasonably could have understood as an encouragement that acknowledges that the statement has contributed to creating a climate where such acts may be considered as legitimate to carry out and therefore has caused a danger to the public—in those circumstances, the question of whether or not the statements have actually encouraged others to commit, prepare or instigate a specific act is not relevant. It may be that distinguished lawyers might say we have not framed this in the right way to meet the signing of the Convention but there is absolutely no intention to do that. The intention is to try and create a law which can be enacted and which is consistent with the European Convention.

  Q18  Lord Plant of Highfield: It is a jolly good thing in life generally to change your mind when you think you are wrong. Would it be fair to say that your 20 July statement saying that intention was an important qualification was an error in a sense and that your thinking has evolved since then; or do you think Clause 1 somehow embodies what you said on 20 July?

  Mr Clarke: In the light of your question I shall certainly re-examine the wording of what I said on that occasion. As I speak now, I do not feel inclined to acknowledge any change in line because I do not think there has been but I will certainly look at my wording carefully to see if that interpretation could legitimately be made.

  Q19  Dr Harris: Returning to Baroness Stern's question about the breadth of the offence, given that the definition of terrorism includes serious damage to property and indeed the threat of such, is it the case in your view that the sort of domestic terrorism or actions that we see from animal rights extremists would very firmly come under the ambit of this Bill and indeed that definition?

  Mr Clarke: It is not targeted specifically at that type of terrorism but I certainly think animal rights terrorism is something that has to be attacked. I do think it was a terrorist act to burn down the buildings in Oxford which the animal rights organisations did, if that is what you are referring to. In the case of "domestic terrorism" the blowing up of the Nat West Tower in London was a terrorist act against property.

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