Joint Committee On Human Rights Minutes of Evidence

Examination of Witness (Questions 40-59)


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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