Examination of Witness (Questions 40-59)
RT HON
CHARLES CLARKE
MP
24 OCTOBER 2005
Q40 Lord Judd: Would a non-national
who publishes critical views seeking to explain why people resort
to terrorist violence but who has no intention whatsoever of inciting
the commission of a terrorist offence, and where the publication
does not give rise to any danger that such an act will be committed,
be liable to deportation?
Mr Clarke: I think one would have
to look at the detailed circumstances but as you have described
it I doubt it. Explanation is not encouragement, and that was
the word you used right at the beginning. As I say, one cannot
judge in every circumstance but, as you put the question, I doubt
it.
Lord Lester of Herne Hill: Can
I just express dissent from what Lord Judd said?
Q41 Lord Judd: My last question is
this. There is a retrospective dimension to the proposed legislation
but Article 10 requires the applicable law to have the qualities
of accessibility, foreseeability and predictability to enable
individuals to know the consequences for them of their behaving
in particular ways. Does the retrospective application of the
new list of unacceptable behaviours mean that somebody can be
deported for views expressed before the publication of the new
list and in circumstances in which the power has never previously
been exercised?
Mr Clarke: In looking at any individual
case any Home Secretary would take into account all the available
information, including the timing and frequency of any comments
or actions as well as any indication of changes of opinion, but
fundamentally the issue is the opinion and expression of that
opinion by the individuals concerned, wherever that was made.
Q42 Lord Campbell of Alloway: Listening
to the noble Lord Lord Judd perhaps I could make in the irenic
spirit a compromise proposal which deals with the question of
intent, deals with the problem of glorification and provides a
tight form of definition. If you knock out "glorification"
and say that somebody who, in the old test, "aids, abets,
counsels or procures an act of terrorism", then "intends
to procure" means that he intends to do it. Surely you could
tighten up the definition in some way and under extant law it
would be an addition, if you like, but it would not be wholly
deviant from the extant law because a conspiracy to aid and abet
terrorism would be criminal in any event because terrorism in
the form in which we are dealing with it involves serious injury,
death, damage to property and all the rest of it. I only put it
forward as a way perhaps of dealing with one of the points—I
am not dealing with the others; there is no time—that Lord
Judd made.
Mr Clarke: I will certainly take
advice from my lawyers on the particular proposal that you have
made and look at it, as I have tried to do all the way throughout,
in a flexible manner.
Q43 Dr Harris: Aside from the issue
of intent and danger, which I think we have already covered, you
could have chosen in your list of unacceptable behaviours to use
the same words as you use in the Bill around the encouragement/glorification
offence: incitement, encouragement, glorification, but you have
chosen, looking at the bullet points, to use the words "foment,
foster"—in terms of "foster hatred"—and
"justify". "Justify", in particular, strays
arguably into Jenny Tonge/Cherie Blair territory. Why could you
not just stick to the words in the Bill? Is it not widening it?
Mr Clarke: Personally I do not
think that "justify" does fall into the territory you
describe. Secondly, it may be helpful to give some guidance to
the timing on this. We published a proposed list of unacceptable
practices at the beginning of August. We then consulted and I
said in my statement in late August when we had finalised the
list that we would look again at that list of unacceptable behaviours
when Parliament finally concluded the legislation for this process.
We acknowledged that they might not be in the same area and at
that stage we had not yet written to the Opposition parties to
discuss the position with them. I think the best thing I can say
is that there is a case for consistency but I think with consistency,
which should be supreme, if I can put it like that, is the wording
that is finally resolved by Parliament in this legislation. Once
we get to Royal Assent we will look at the relationship between
that wording and the unacceptable behaviours wording.
Q44 Lord Lester of Herne Hill: Can
it not be said in your favour that your unfettered, undefined
power to get rid of someone on "non-conducive to the public
good" grounds has now been spelt out by you for the first
time in a public document so that there is greater certainty than
there was before in that sense, and can it not also be said that
you must not mix up the definition of crimes, which is under the
convention and so on, and the use of this power, which are two
different things?
Mr Clarke: I agree. I am always
keen for people to say things in my favour by whatever means and
yes, I do think it can be said in my favour that I, unusually
by the sums of history, made a statement to the House of Commons
about the use of the powers that I have to deal with unconducive
behaviours, set out a process for consulting on it (albeit rather
brief) and then came back with a public statement about where
we would go. I think that is a superior form of doing it rather
than simply exercising the power without any public expression
of what one is doing. Of course I agree with you that the list
of unacceptable behaviours is not the same thing as the legislation,
but the point that Dr Harris has just made raised the question
for me of whether there could be any beneficial relationship between
the two, and the answer is yes but we will look at that once we
have got to the point of this legislation being enacted.
Q45 Dr Harris: As I mentioned I would
like to follow up that point, which was the point I wanted to
follow up originally. I take the point you make about having defined
what you mean creates greater clarity, but in your letter to the
Opposition you state that in respect of the Bill and the powers
to remove citizenship this new clause is "designed to enable
the Secretary of State to take away British citizenship from someone
who has committed one of the unacceptable behaviours set out in
the list which we published on 24 August". The list on 24
August says, and this is the problem, "This list is indicative
and not exhaustive". Is that assurance in that letter—that
it will be restricted to that list—meaningful, when you
actually say that it is "indicative and not exhaustive"?
Therefore it is not really, in the way that Lord Lester was implying,
restricting your discretion?
Mr Clarke: The use of the phrase
"indicative and not exhaustive" does not mean it is
meaningless. There is meaning in the sense that I have set out
in that list a list of events and activities which are clearly
defined, which provides some kind of guidance at any rate, I think
quite a lot actually, as to any Home Secretary would act in those
circumstances.
Q46 Lord Lester of Herne Hill: On
the question of torture, the prohibition against torture is absolute.
The torture convention says that you cannot send to a country
where you believe that there is a substantial risk of their facing
torture. Given that it is absolute, I do not understand how there
can possibly be a balance between the absolute prohibition against
torture on the one hand and national security or other considerations
on the other. Surely, if it is an absolute prohibition, you cannot
send someone to a country where you believe there is a risk of
torture and there is not an earthly chance in hell or heaven of
persuading the European court, in the light especially of what
is in the torture convention, to come to a different conclusion?
Mr Clarke: First, you are quite
right: we are bound, and even if we were not bound we would not
want, to return to anybody to a country if there were a real risk
of torture. It is not only that it is unlawful, which it is, but
also we would not want as a country to be doing that. There are
a lot of issues to be argued about what the extent of the real
risk is and how that operates and so on, but that is for the court
in any individual case to look at. We think that the Chahal
judgment, which was narrowly carried in the European court, did
not give sufficient account to some of the issues involved in
this and that is why we are returning to the European court. We
will see what happens in the process. I am not in a position to
pre-judge where they are. They will make their judgment in the
European court and we will see what emerges.
Q47 Chairman: Quite simply, Home
Secretary, are you prepared to deport somebody where you are satisfied
that there is a substantial risk of their being tortured in the
receiving country?
Mr Clarke: No, and that is not
just my position but also the government's position.
Q48 Lord Lester of Herne Hill: If
you fail to persuade the court to change the Chahal judgment
I assume that you are not going to require British judges not
to follow the lead of the Strasbourg court, are you?
Mr Clarke: The only purpose of
changing the law in this country in a way that was not compliant
with the European Convention would be to ask the European court
to return to that question. Otherwise the only choice we would
have would be to leave the European Convention, which is not something
the government wishes to do in any way. We will see how the judgments
go in these cases and decide how to deal with those circumstances.
Q49 Dr Harris: With regard to this
issue of deportation with diplomatic assurances, can I first ask
you how many individuals are being detained with a view to deportation
to countries with which a memorandum of understanding has not
yet been agreed, and what then is the legal basis for their detention?
Lord Carlile has himself questioned the legality of detaining
individuals with a view to deporting them when these memoranda
are concluded.
Mr Clarke: We have currently detained
six people where we have actually signed memoranda of understanding
with the country of nationality and 17 where such a memorandum
of understanding has not yet been formally signed. The basis upon
which the detention is happening is our assertion that we are
imminently going to be able to sign such a memorandum of understanding
with people in those cases. I am delighted that we have been successful
with two countries and I am optimistic that we will be able to
do that with other countries as well. We are at an advanced stage
of negotiations and/or discussions.
Q50 Dr Harris: Can you tell us more
about the progress you are making with regard to assuring us that
there is this imminence around signing these memoranda? Progress
and imminence are not the same thing.
Mr Clarke: I do not think I can
give you the detailed answer you want except to say that there
are substantial discussions taking place with a number of countries,
which have taken place both in this country and in those other
countries, but I do not think it would be right for me to pre-empt
the agreement that is made in the form of joint signing of a memorandum
of understanding without the agreement of the other country and
so I shall not go into more detail.
Q51 Mr Shepherd: The courts do not
share your view.
Mr Clarke: That will be an issue
for them. It will be an issue for us too. I wrote a piece in the
Evening Standard about this in August in which I said that
if the courts were to say that a government-to-government agreement
was essentially not worth the paper it was written on, which some
lawyers have argued (not the generality of lawyers but some lawyers),
that would be effectively neo-colonial in its approach and that
is my view. I think it would be extraordinary if a British court
were not to take serious account of a memorandum of understanding
seriously entered into by this government and another government.
I have heard the most appalling back-chat conversations of the
type, "You cannot trust governments from North Africa",
and so on, which I simply reject and I think are completely unacceptable.
Q52 Dr Harris: The fact that you
are seeking a memorandum of understanding suggests that there
is a reason to do that and that these are countries where torture
happens. If that is the case, taking a wider ethical view, how
can you justify going unilateral or bilateral when the Convention
against Torture is probably the most important (in terms of absoluteness)
multilateral approach. In other words, how can you justify seeking
to worry about the human rights of these three people, if you
are removing three people, while undermining attempts to protect
other people in that country? Is that ethical?
Mr Clarke: I think the reverse
is entirely the case and I think that liberals ought to welcome
our conclusion of memoranda of understanding with these countries
because what will happen as a result of this is a much stronger
relationship on precisely the human rights agenda which is concerned.
It is not my role here to comment on the particular human rights
records of other countries but I will observe that signing the
Convention against Torture is not of itself a guarantee that torture
does not take place in a signatory country. I think a memorandum
of understanding around particular cases is a stronger form of
agreement.
Q53 Baroness Stern: Home Secretary,
can I ask you a question about the post-return monitoring mechanisms?
If I can start by saying something in your favour, you are clearly
very against violence and I think all of us share that, but that
spreads across the board. The Asylum and Immigration Tribunal,
in the recent case concerning deportations to Zimbabwe, was very
critical about the government's lack of post-return monitoring
and the European Committee for the Prevention of Torture, the
CPT, in its recent report said that it had an open mind about
the possibility of devising effective mechanisms for post-return
monitoring, and they do know quite a lot about monitoring. In
the light of that what would you see as the minimum content of
any post-return monitoring mechanism which the government intends
to require in the memoranda of understanding in order to be satisfied
yourself that nothing bad is happening to these people?
Mr Clarke: First, I do think it
is important to say that there is a qualitative difference between
the general immigration returns issues that you mention, for example,
in Zimbabwe or indeed in other countries, and the particular type
of memorandum of understanding we are talking about concluding
in relation to the very small number of individuals we are talking
about in these circumstances. I think they are qualitatively different
cases, although obviously there are some common features. Secondly,
the broad functions to be performed by any monitoring body, for
example, practical arrangements for dealing with the situation
immediately on arrival and for contacting the monitor will be
dealt with in conjunction with the body selected and the government
concerned to establish that it is there. The monitoring body would
need to have available to it the expertise and experience necessary
to effectively monitor the arrangements. That is what we will
work to achieve. We would not sign memoranda of understanding
unless we were confident that those memoranda would be maintained.
There is a whole range of issues about risks of returns in the
case of immigration policy to a number of countries about which
there is a very substantial debate and significant Foreign Office
advice, and there is a great deal of argument to take place about
the risks that are involved in any given circumstance and I do
not think we should confuse them for the purpose of this discussion
with the cases that we are talking about in this context.
Q54 Mary Creagh: Home Secretary,
when you have previously given evidence to this committee you
have been asked whether you could confirm that none of the material
obtained from the Belmarsh detainees had been obtained from sources
abroad where there had been allegations of torture and prisoner
abuse. What systems do you have in place personally and the Home
Office corporately to ascertain whether intelligence information
has been obtained by the use of torture?
Mr Clarke: I do not think I have
a lot to add to what I said to the Human Rights Committee before.
As you correctly say, I was asked that question before. We are
clear that evidence obtained as a result of any acts of torture
by British officials or with which British authorities were complicit
would not be admissible either in criminal or civil proceedings
in the UK, whether the evidence was obtained here or abroad. There
is a serious issue about our ability to know about external evidence
that comes in any given circumstance. We take the issue very seriously
because our policy is unreservedly to condemn the use of torture
and we have made it an important part of our foreign policy to
pursue its eradication worldwide. However, by definition almost,
we cannot, because we are not a world government, know in all
circumstances exactly what the situation is. There is a case before
the Law Lords on this particular issue as we are speaking where
the issue is the extent to which we can know that. The case was
heard on 17-20 October. Judgment was reserved and I do not think
that before the Law Lords finally judge I want to say anything
further. We take very seriously, Ms Creagh, this whole issue of
torture. It is a very important issue to us. We do not collude
with other governments that seek to do that in any way and it
would be quite wrong if we were to do so.
Q55 Mary Creagh: Can we take assurances
that prisoners have had access to water toilet facilities, food,
etc? We are talking about very small numbers of cases, are we
not? It is not world government. It is just six or 10 or 20 people
and specific evidence obtained. Can we not ask the governments
how it was obtained?
Mr Clarke: We could ask for answers
of those kinds and I am certainly prepared to consider that. The
problem is one of knowability. The problem is what test could
one conceivably have which would extend to every conceivable circumstance
in which anybody is held to look at their position. The difficulty
I have personally but the government has generally is to say that
we know so much about the conditions under which anybody has been
held in any circumstances that we can give an absolute assurance,
whatever it may be, in relation to any given area. As I say, that
specifically is the issue that has been before the Law Lords and
that is why I would prefer, if you would allow me, to wait until
after we get their judgment before elaborating on that. Sorry—hang
on, hang on.
Q56 Mr Shepherd: Eliza Manningham-Buller
has actually made some comments on that point, has she not, and
they seem a little bit different from yours, that many regimes
would take it as an impertinence if anyone were to query their
methods and it might dry up the flow of information to British
sources.
Mr Clarke: I do not read everything
that she says. I do not recall her using the word "impertinence"
in that way, and certainly I know for a fact that she takes this
issue very seriously as well.
Mr Shepherd: I know she
does.
Q57 Baroness Stern: Will the government
be supporting Lord Lloyd's Interception of Communications Bill?
If not, why not, and when will the government bring forward its
own proposal relaxing the absolute prohibition on the use of intercept
evidence? You could say "no" and "tomorrow".
Mr Clarke: I will say no to the
first question. We will not be supporting Lord Lloyd's Bill. We
are actively considering whether we can evolve our position on
this but there are two big issues which the committee needs to
understand. In terms of making our sources and methods of working
available to the defence in any given case there is a massive
issue about whether, by making that information available about
how we operate, we make the ability to collect the intelligence
upon which we rely more difficult to achieve. That is a widespread
concern, one that will be influenced by the evolution of technology,
one which we have not yet found an answer but one which we are
actively investigating. The other one is one more for the lawyers.
If there is a telephone conversation between you and me any defence
lawyer could say, "What about every other phone conversation
you have had? What about any conversation you have had with a
friend about me?", and vice versa, in this regard, and would
we be forced to collect enormous quantities of material to use
any particular part of the information? The best way to deal with
this is with some form of pre-trial scrutiny by some independent
investigating judge and we are looking again at that as a means
of dealing with it. The confidence in the defence not being able
to get an enormous amount of work in this regard is not very great.
Q58 Chairman: Home Secretary, without
straying into the case of Mr de Menezes, do you think that on
such an issue so vital to public confidence as the use of lethal
force by the police the guidelines to which the police are operating
should be available in public and subject to parliamentary scrutiny?
Mr Clarke: There is a case for
this. I will decide how to deal with it after the IPCC report
into that particular incident. I think there is an important question
again as to revealing our techniques for dealing with these situations.
The issue of how we deal with a potential suicide bomber is a
pretty serious one to be considered and is one that we will look
following the IPCC report in this particular case.
Q59 Chairman: Thank you for your
evidence today, Home Secretary. You have been very frank in the
way you have answered all our questions. We look forward to seeing
you on a future occasion on another subject.
Mr Clarke: Many, I am sure.
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