Examination of Witness (Questions 20-39)
RT HON
CHARLES CLARKE
MP
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.
| 
