Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 20-39)


24 OCTOBER 2005

  Q20  Dr Harris: I think I am agreeing with you. We should not have any qualms about using the term "terrorism" where it meets those definitions, even if it is not international.

  Mr Clarke: Not in my opinion, no.

  Q21  Dr Harris: On that basis, would you say that those who have I believe in the past sought to condone the actions of animal rights terrorists by saying that violence begets violence and therefore violence against persons or buildings is justified by violence against animals would very much fall under the ambit of this Bill; is it intended to and they should know that?

  Mr Clarke: I would put it slightly the other way round. I would say that those who argue that committing violent acts or terrorist acts to promote the cause of "animal rights" and justify it by reference to a phrase such as "violence begets violence" are illegitimate and would be excluded by this legislation, as I understand it.

  Q22  Lord Lester of Herne Hill: I am sure you know that the Bill makes a rather serious departure from the general rule which is that, where there is a series of events, it is a necessary part of the prosecution case to prove intention. The Bill as it stands not only does not do that but has reasonable grounds for believing instead with an offence punishable by seven years' imprisonment, but does not even say, as for example the Racial and Religious Incitement Bill does, that the defendant may disprove intent and that will be a complete defence. I just wonder why you think that what you said in July about the need for intention no longer obtains, because it seems to me what you are doing here is a pretty great departure from what any criminal justice system would normally require.

  Mr Clarke: I have tried to set out earlier the reason why I think that an absolute requirement of intent as such would render these clauses virtually useless. I will go back and check my own language as politicians should do as a matter of course, in terms of 20 July, but there certainly has been no desire on my part to shift significantly over that period. In fact, you putting the points to me today is the first time that particular point has been put to me in that way, but I will double check it as a result of what Lord Plant has asked me. The reasons why we have not gone down the course of an absolute requirement for intent are those which I set out earlier, which I think are completely sustainable.

  Q23  Mr Shepherd: I am not quite clear, from what you say what is the distinction between an act of war and an act of terrorism. You are not happy with the concept of terrorism in the modern world if you say that most advances towards democracy have been made by internal measures that do not go over that line. I think of the Partigianni, initially, trying to overthrow a government that was lawfully constituted and recognised. I think of the free French or the free Italians in London trying to restore what they saw as legitimate government but which the world, in the case of Mussolini, recognised as legitimate government. This worries me in the context of the ground statement that the rules of the game have changed. I am familiar with offences in terms of soliciting an offence which is clear in English law. Our brief gives us the case of R v Most 1881, where it says, "The largest words possible have been used, `solicit' that is defined to be to importune, to entreat, to implore, to ask, to attempt to try to obtain; `encourage', which is to intimidate, to incite to anything, to give courage to, to inspirit, to embolden, to raise confidence, to make confident; `persuade' which is to bring any particular opinion, to influence by argument or expostulation, to inculcate by argument; `endeavour' and then, as if there might be some class of cases that would not come within those words, the remarkable words are used `or shall propose to'." That looks to me almost like a catch all bag. It comes back to the very first questions that were asked on Clause 1. Why is it that these words—incitement to murder in some form or another—are not caught by existing law?

  Mr Clarke: I have obviously failed, at least to your satisfaction Mr Shepherd, to answer the question satisfactorily but I do not think I have a lot to add to what I said earlier. Let me make, first of all, an historical point. If one goes back to the Second World War and to the time even before the Second World War, where you had a relatively small number of democracies fighting great totalitarian regimes of a variety of different descriptions, to the period where we are now—I have just come immediately now from a service at St Paul's on the 60th anniversary of the United Nations; you were there as well, which has been about, over the whole of that time, spreading democracy and trying to weaken dictatorship and totalitarianism—there is a massive change of circumstances from the middle of the Second World War to now. One can say that our law should pay no account to that process but I do not think that is right. I think our law has to deal with the circumstance that we face today. In the circumstance that we face today we face a particular form of threat or series of threats from terrorism which we have to find our best possible means of defending ourselves against. It can be argued that we do not need Clause 1 to help us do that. I argue that the clause that deals with encouragement of terrorism, with all the issues around glorification and so on is an absolutely critical necessity in a world where there are people trying to draw young men in particular into acts of the kind we have seen in London just this year, which we have to do our very best to stop, in my opinion. Why do I think that is? Because we have to try and protect our security against people who behave in that way. The counter argument that argues that Clause 1, for example, is not necessary simply states that people who encourage terrorism, who incite it, who operate in that way are people to whom the law should pay no account.

  Q24  Mr Shepherd: That was not the point I was trying to establish. In existing English law they are caught. That was the point I was trying to make. I gave you what we were cited here, which is murder, R v Most, 1881, and there was the definition given by the Law Lords. Within that context I was trying to ascertain why it is necessary for this line to be drawn.

  Mr Clarke: I will look at the particular 1881 reference that you have given me.

  Q25  Mr Shepherd: R v El-Faisal, for instance.

  Mr Clarke: I will obviously look at it now that you have given it to me. I will write to you on it if you wish me to do so. There are distinguished lawyers in the room here but I do not think the view that says there is no need for change in the law in this area is one that would be substantiated by most lawyers.

  Q26 Mr Shepherd: The rules of the game have changed. What does that mean?

  Mr Clarke: The reason the Prime Minister used that phrase was because he was arguing quite clearly that we had for the first time in this country an example of suicide bombers prepared to blow up tube trains and public transport in the way that we know that they did, not for any motive other than one of destruction of every aspect of our democracy that we live in. They were prepared to come to these acts, they committed these acts and they killed people and we therefore need to pay account to that.

  Q27  Lord Campbell of Alloway: Yes, but then we go straight back to the fundamental question, surely, where we started. What happened on those tube trains and the bus could have been dealt with perfectly well under extant law. Why is it necessary to spell out examples of where the extant law would apply? We have a law of conspiracy. We have a law of murder. We have all sorts of other aspects which I would not dream of boring you with. You probably know more about them than I. The issue is why is it necessary? I am with Richard Shepherd on this, probably for slightly different reasons, but in principle I cannot see the fundamental case for specifying acts related to terrorism which are in fact covered by our extant law. That is the issue.

  Mr Clarke: I understand it is the issue you have raised with me and I have done my very best to answer it. Obviously I have not answered it to your satisfaction or to Mr Shepherd's satisfaction. I understand that, but what I am trying to say is that we are in a state of affairs where we are seeking to extend the law to outlaw those and those organisations who seek to glorify, to encourage, to promote terrorism in general rather than a particular act.

  Q28  Lord Campbell of Alloway: But you are extending it without the requirement for intent which is fundamental to criminal law. There is the fundamental extension. That is the fly in the ointment, if I can put it that way.

  Mr Clarke: I have given the answer to Lord Plant and then to Lord Lester about why we have not put the explicit reference to the absolute requirement for intent in the legislation in the way that you have just suggested. As far as the question that it is a rather too woolly form of legislation or a definition which is too woolly, I do not accept that. I think it is very clear what we are talking about and I think legal action is what is needed to deal with it.

  Q29  Mary Creagh: You are currently consulting on a possible new power whereby those controlling a place of worship can be required by a court order to take steps to stop certain extremist behaviour. How will the police demonstrate to a court's satisfaction that a place of worship is being used to foment extremism, given the difficulties that we know about in terms of phone tap evidence and also the dangers of revealing people who are acting as agents? What do you see are the practical advantages or are there any practical advantages in applying for a court order in these cases rather than prosecuting the individuals concerned?

  Mr Clarke: As you say, we have a consultation document and I do not want to prejudge the outcome of that. The reason why we have put the option of orders rather than specific prosecutions is because the point has been put to us by a number of faiths, not simply the Muslim community, that it would be better to try in the case of a particular place of worship where issues of this kind arise to get it onto a path which did not foster extremism rather than seek simply to punish in any given circumstance. That is why the kind of order regime that we have talked about is being discussed in that context. This is why we are out to consultation, of course. The overall issue is to find a mechanism of dealing with the extremism which is there in some cases and has notably been there in some cases in the past, while not violating the right to worship and the ability of faiths of all kinds to have a place of worship which they can operate in the most effective way. That is why we have the structure and framework that we have. We will look carefully at what people have to say in response to the consultation that we have before drawing up particular proposals for legislation but that is where we are at the moment. Our overall desire is to work with the mainstream communities to ensure that worship takes place in the right way rather than not. One of the most striking things about the ideas that came from the Muslim community in particular, which I discussed them with shortly before the end of September, was the view that preaching should always be in English as well as in another language. That was an idea from them, not from me, precisely to try and deal with some of the concerns that there might be a secretive approach to worship rather than an open approach to worship. It is that kind of thing which is the best approach to try and tackle this.

  Q30  Mary Creagh: Do you think that these proposals are likely to be workable given the difficulty of defining a place of worship? I can think of examples where London mosques have been shut down and people have moved out to worship in the street. In that case would the street by defined as a place of worship?

  Mr Clarke: There are difficulties of this kind. Perhaps, as an easier example, it is relatively common at the moment for people to move from a mosque to creating a place of worship in somebody's room in a house, not in the street though it could be there too. There could be issues of that type certainly. That is one of the things that we have asked people to comment on in the consultation document that we have.

  Q31  Dan Norris: My question goes back to the Terrorism Bill, particularly the pre-charge detention aspect of it. The police have put forward a number of justifications for extending the period from a maximum seven days to a possible maximum of three months. I accept that there are weekly reviews by judges to check that that is okay and needs to continue. One of the justifications is that suspected terrorists will use very sophisticated encryption on data. For example, someone could walk into a shop today and buy a hard drive that would have 192 bit encryption. I do not know how many years it would take to unscramble all that information but is that not an argument for the security services and our police having similar technologies to counter the technologies they are having to face; and therefore requiring resources from government rather than extending the period that suspected terrorists can be detained?

  Mr Clarke: There are always arguments for extending the amount of resources that there are. Indeed, there has already been a substantial increase in the amount of resources going to both the police and the security services in these areas. They do not argue—and I do not believe it is true—that lack of resources is what leads to the time taken, for example, in de-encrypting hard discs or the time taken in dealing with overseas intelligence services where it can take time to deal with something; or the time taken for trying to go through literally tens of thousands of CCTV films, as arose after 7 July, to try and get to the basis upon which a charge can be made. It is true in theory I suppose that in each of those cases an argument could be made that resources alone would resolve the problem. I am quite sceptical about that. I think some of them are very complicated and difficult to deal with. If one is following up leads in a wide variety of different ways, I am not sure that resources will resolve the problem. I accept the argument for more resources but I do not think it is any shortage of resources which has led to the proposals we put before the House in this area.

  Q32  Chairman: I want to look at the international issue here. You gave evidence to the Home Affairs Committee that the three months that you were suggesting as a maximum compared quite favourably with some other continental European countries like France and Spain. Are we comparing apples and oranges here because there is a question whether we are comparing a pre-trial or a pre-charge period; also, whether and to what extent in continental countries people can still be interrogated after they have been charged, which is normally not what happens here. Are we comparing the same things here?

  Mr Clarke: You are right in that we are comparing apples and oranges. We are comparing completely different legal systems, the adversarial system or the inquisitorial system. One is an apple and one is an orange. I am not entirely convinced that from the point of view of the person who is being questioned it does not feel pretty much the same. I can quite see that somebody detained in a French prison might say, "Thank Christ I have the inquisitorial system rather than that horrible British adversarial system" or vice versa, but I am not convinced it feels that different. That is why I made the comparison I did because the fact is that, though the legal basis of the detention is different in both cases—and it is quite right to say apples and oranges—the reality is that people who are suspected of these kinds of offences are detained for really very substantial periods of time under other jurisdictions, albeit on a different legal base to that which happens in this country.

  Q33  Chairman: That brings me on to the investigating judge system which has been a consideration generally in this area for some time now and goes back to recommendations by Lord Carlile and also the Newton Committee. I also raised it myself during one of the debates several years ago. Has the government given any more thought to trying to bring in an investigating judge system into the review of the pre-trial detention period? For example, I know there is the suggestion in the Bill that the detention period should be reviewed on a seven day basis by a district judge but has any consideration been given to a rather more senior judge being involved with more directive powers in terms of the investigation itself, being able to see and check the evidence even if it is secret intelligence?

  Mr Clarke: On the second point first, we are very sympathetic to the point made by Lord Carlile that the judicial scrutiny of the period of detention should be supervised by a higher level judge than that currently proposed in the Bill. We are looking at that very closely to see how we could do that to try and meet what his proposals are. During the passage of the Bill I would be surprised if we were not to table amendments to give effect to that. On the more general point, there is consideration being given in government but to be candid there is also disagreement in government and across the whole of public life about the idea of extending the inquisitorial system or the investigating judge regime, whatever one wants to call it, even narrowly to terrorist cases, let alone more generally, as some would argue, into other areas of life. It would be a very major reform which we are considering but have not yet decided to bring forward proposals on because there is not any consensus across the legal world that that is what we should do. Speaking completely as an individual and with the disbenefit of not being a lawyer myself and therefore understanding little of these things, I think there is a lot to be said about an investigating judge regime rather than the current adversarial system. Just about every lawyer I know thinks I am wrong about that. I cite it as an aside but amongst the lawyers who think I am wrong about that are some good colleagues in the government.

Chairman: This is a lawyer who does not necessarily think you are wrong, although there are some around the table who would disagree.

  Q34  Lord Lester of Herne Hill: I am one of those lawyers who thinks there is a lot more in the continental system that we should think about. Therefore, I am probably in the minority but I put that to Lord Carlile once when we were taking evidence. On the apples and oranges again, although obviously you are right in saying that continental systems are different from our system, the point that worries me is that in continental systems, even though someone could be banged up for three or four years awaiting trial, the period before you have to charge them is really quite brief. I do not know enough about what happens in France or Germany or Spain to answer this question but I thought the whole point was that you had to charge them within a reasonable time and if you then hold them awaiting trial you are not allowed to use the detention period in order to accumulate more evidence for more charges. I may be wrong about that but is that not a worry? A three month detention period will be before you have even charged the person, which is much longer than happens in continental systems?

  Mr Clarke: Again, I hesitate to try and give any authoritative legal opinion on it, but I thought you were wrong. I thought the whole point about the investigating judge system was that you were being held while an investigation was taking place by this investigating judge who would be continuing to investigate the case and therefore put more evidence questioning you over that period and so on, over a lengthy period of time as you say, up to three or four years.

  Q35  Lord Lester of Herne Hill: We are told in our brief that the pre-charge detention period is 96 hours in France and 120 hours in Spain. I thought that we were extending that up to three months for pre-charge.

  Mr Clarke: We certainly are extending that up to three months potentially in this tiny number of cases for pre-charge but the point I am trying to get at is that I am not at all sure that the concept of a charge in our system is the same as the concept of a charge in the French or German system. I may be wrong and it is an area in which I certainly would not speak with authority on it. Maybe it is another good example of the Home Office spending large amounts of money on research to set out a clearer research paper with answers on this question. My only point about apples and oranges was that, from the point of view of the individual, it may not look very different.

  Q36  Chairman: This is an issue we want to look into, in more detail, ourselves. What is the bar in the existing law to charging somebody with a lesser offence and, as more evidence comes to light, bringing more serious charges later? Is it simply that they cannot then be interrogated which is the problem or are there other problems as well?

  Mr Clarke: We are very, very active in looking at this particular point in the current circumstances. As an individual, I was quite taken aback when I realised how the current law works, though that is not uncommon when I look at the way the current law works. We are looking at it very actively. It is not simply a question of questioning it; it is also a question of looking at other issues as well. Again, it has significant implications across the whole of the legal system, not just in relation to terrorism. The idea that we can solve this particular issue by that route I do not think is possible in the timescale we are talking about. We are nevertheless very actively looking at the matter. The Attorney General has pressed us to look at this very closely and we are doing that actively. The views of the Committee would be very interesting on that.

  Q37  Lord Judd: You have the power both to exclude and deport from the United Kingdom non-UK nationals on the grounds that their presence here is not conducive to the public good. On 20 July you announced that these powers—I think I am quoting accurately—"need to be applied more widely and systematically." On 23 August, you announced the outcome of the consultations which you had been having and published the final list of unacceptable behaviours. It is relevant to note that it is proposed by the government in amendments to the Immigration, Asylum and Nationality Bill that the same list of unacceptable behaviours will be used by you when exercising your proposed power to deprive a person with dual nationality of their British citizenship on the ground that such deprivation is conducive to the public good. The behaviours listed all concern the expression of views and therefore are very central to Article 10 of the European Convention which takes the freedom of expression extremely seriously. Are you satisfied that the phrase "fomenting, justifying or glorifying terrorist violence in furtherance of particular beliefs" is sufficiently precisely defined, bearing in mind the likely impact on legitimate public debate about the causes of terrorism and therefore on freedom of expression? In putting that question, I believe you when you say that you are deeply committed to the principles of democracy and open society. These are immense issues we are dealing with in this discussion with you. They are bound in any healthy democracy to be issues that people want to debate and discuss. Are you really satisfied that this kind of generalised wording draws a distinction between that debate and discussion and what is unacceptable?

  Mr Clarke: I am. I very strongly, passionately believe that we should as a society debate these questions. I have been very ready to discuss these in a wide variety of different fora and will continue to do so. I think that is the right way to proceed. Let me take you, if I may, through the history of these events. The Home Secretary has always had—I do not know when it started but well before my time certainly—the power to ban people from the country on the grounds that their presence was not conducive to the public good. It has been used in a whole variety of circumstances, often controversial, because it is a judgment of the Home Secretary at any given time. The events of 7 July led me to wonder whether or not we should extend that power which exists—it does not require a change in law—to a wider range of "unacceptable behaviours". As I said in my statement to the Commons on 20 July, we have hitherto been very careful and not gone over the line into areas which might be construed as attacks on freedom of speech for the reasons that you very clearly set out. However, as I also set out in that statement of 20 July, I believe there is a set of behaviours about identifying and dealing with those who foster hatred and positively, as a matter of their intent—I use the word "intent" in this context—seek to create the environment where terrorist violence can flourish, who positively go down that course as a matter of judgment that they make. I have to decide in those circumstances whether foreign nationals of this type ought to be just entitled to come into this country under those circumstances or whether I ought to exercise the rights that I have to protect us in any regard from those. I decided we should extend it because I think the events and implications of 7 July carried a wide variety of very deep implications that required us to think about this. I think the language that I talk about—i.e., identifying and dealing with those who foster hatred and seek to create the environment where terrorist violence can flourish—accurately identifies the activities we are seeking to address: fomenting, justifying and glorifying. I think it is very clear. We are not talking about any British citizen; we are talking about people who are overseas nationals. I agree within the context of the Immigration Bill we are talking about depriving citizenship to people who have dual citizenship in such circumstances, again, I think perfectly reasonably. It is perfectly reasonable to argue that what I say on this is completely wrong and we should simply say, okay, it does not matter how you argue, what you do, what kinds of argument you wish to spread, whatever mischief you may be about, however you are trying to seduce or bring young men to engage in terrible acts, it should not be a matter of concern to the Home Secretary. I just cannot accept it and that is why I dealt with the list in the way that I did.

  Q38  Lord Judd: You used the words "completely wrong". Forgive me, but that is a good debating technique. It is not that they are completely wrong; it is that these matters are extraordinarily complicated. There are balances to be struck and it might be just possible that you do not have the balance where it should be and the consequences of that could be crucially significant. You referred to intent and of course the Convention on the Prevention of Terrorism also refers to intent. It speaks of an offence glorifying or condoning terrorism being done with the intention of inciting others to terrorism and of the result of provocation being to cause a danger that such a terrorist offence might be committed. Why do you not spell that out in your proposed legislation? Why leave it in the generalised form?

  Mr Clarke: There are two completely different questions here. The first is the question about the list of unacceptable behaviours and the way that operates. I do not think I was making a debating point. I simply think people will have to make their judgment about where it falls. I have been at great pains myself to point out as fully as I can that this is, as you say, an issue of balance and judgment on each occasion between particular rights and the overall rights of society as a whole, and that is a balance which is there all the time in every consideration. Am I vain enough to think I have got the judgment on each of these balances correct at every single juncture? I do not think so necessarily. Do I think I am in the right place? Yes, I am. Do I think Parliament, when it looks at it in detail, will go right through it and come to a view? Certainly it will. It will have this debate at each stage as we go through in a very full debate. As far as the issues of intent in Clause 1 of the Bill are concerned, which you mentioned just now, I have got not a great deal to add to what I said to earlier questions on precisely this point, and I have said I will go back to 20 July and look again at what I said there. I have not got anything much further to say on what we have already gone through on this.

  Q39  Lord Judd: But you do agree, Home Secretary, that the more specific you can be in terms of existing conventions and the rest the stronger your position will be?

  Mr Clarke: Of course, and I think the point that Lord Lester made earlier in the conversation about the principle of legal certainty is also a good one.

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