Life, liberty and the pursuit of terrorists
Charles Clarke tells Alasdair Palmer that the most important freedom of all is the freedom to walk the streets without being blown up ‘W hen it comes to the British courts,’ Charles Clarke insists, ‘I am a perpetual optimist.’ Which is fortunate, because he needs to be. We met on the day the Law Lords proclaimed that the government was not permitted to detain terrorist suspects on the basis of evidence which might have been extracted under torture. The government had been arguing that it needed to be able to use such information in court in order lawfully to detain people who were a threat to the British public. The Law Lords called that argument ‘disquieting’ and ‘disturbing’.
It was merely the latest in a series of reverses that the government’s policies to combat terrorism have suffered at the hands of the highest court in the land. Just before Charles Clarke became Home Secretary, the Law Lords delivered a blistering condemnation of the government’s policy of holding without trial foreigners suspected of terrorism. Lord Hoffmann went so far as to claim that ‘the real threat to the life of this country comes not from terrorism but from laws like these’.
What does Charles Clarke think of being responsible for ‘the real threat to the life of this country’? The charge brings another smile from this genial scion of the establishment, whose father was a senior civil servant, and who was himself educated at Highgate School and Cambridge. ‘Most people,’ he says, narrowing his eyes, ‘think that Lord Hoffmann’s judgment in that case was ... shall we say ... seriously ill-informed.’ I now sense the steel underneath the bouncy bonhomie. ‘Lord Hoffmann’s position is not worthy of much respect. I don’t think he represents the whole judiciary.... ’ He shrugs dismissively. ‘His judgment was idiosyncratic ... a one-man band.... ’ But the Law Lords have just accused the government again of trying to trample on human rights and tearing up ancient principles of the common law. ‘I don’t accept that characterisation of the decision on the use of evidence which might have been extracted by torture. We don’t encourage torture, and we don’t torture people ourselves. We collect intelligence. With each piece of evidence we receive from overseas, it’s impossible to go to the source and establish exactly where it came from. We simply cannot know in many cases. And when we cannot know, the proposition that therefore we cannot use the evidence at all is simply not viable. It would have been deeply damaging if the Lords hadn’t recognised that. But they did. It was a contested judgment, but the majority went with the position I have described.’ The Law Lords, that is, accepted that the government could use evidence provided by foreign countries without first proving that it was free of the taint of torture. ‘And that,’ insists the Home Secretary, ‘is a very good thing.’ The concession, however, made a number of the Law Lords deeply uneasy. The fundamental — indeed the only — justification for the anti-terrorist legislation that has caused so much angst among lawyers and civil libertarians, not to mention ordinary liberty-loving citizens, is that it makes us safer. A lot of people contend, however, that it hasn’t worked; that, on the contrary, by alienating members of the Muslim community, who are inevitably disproportionately affected by the new laws, the anti-terrorist legislation has actually made our situation more, not less, dangerous. ‘There is a trade-off all the time between security relating to particular individuals,’ Charles Clarke responds, ‘and the impact on the wider relationships with the Muslim community. It’s always a very difficult call. But I think we have found ourselves in the right place.’ That response will not reassure his critics. Talk of a trade-off suggests that the issue of whether the anti-terrorist laws actually do what they are supposed to do is much murkier than one might hope. Does he honestly believe that the anti-terrorist legislation the government has passed in the four years since 9/11 has made us safer? The Home Secretary’s reply is unequivocal: ‘Yes.’ Even when that legislation has been amended by Parliament and the courts? Here, the reply is more cautious and hesitant. ‘Look, the nature of the terrorist threat we face today is of a more serious and sophisticated type than we have faced before,’ he asserts. ‘We’re dealing with suicide-bombers which was not the case with Irish terrorism. Suicide-bombing means prevention is much more important. The sophisticated communications of the terrorists put a massive premium on intelligence. We have to find new means of gathering intelligence.’ New means which tear up ancient liberties? ‘I don’t accept that.’ Well, CCTV, bugging phones, holding people for weeks without charge and more intrusive means of data collection don’t exactly protect civil liberties, do they? ‘I don’t agree. I believe that the civil liberty curtailed by each intrusion or collection of intelligence that we have proposed is less than the civil liberties which are curtailed when the terrorists are able to plant bombs. Modern terrorism requires modern techniques to deal with it — which in turn need more modern legal frameworks.’ The notion of ‘more modern legal frameworks’ clearly sends a chill down the spines of the Law Lords, with their old-fashioned dedication to the ancient liberty not to be imprisoned without trial or charge. ‘I think the liberty to be able to walk through the street without being blown up is actually pretty ancient,’ the Home Secretary ripostes. ‘And it’s a perfectly reasonable thing to believe that that’s the liberty that matters most. I don’t accept the argument which says that the only liberty that counts is the power of the individual against the state. My life is essential to my liberty. My relations to the state don’t exhaust what I am.’ So is he happy with being able to hold terrorist suspects for only 28 days without charge — rather than the 90 days which the government wanted but was unable to push through the Commons? ‘No, I am not happy with 28 days. I think 90 days would have made us safer. Look, you have judicial scrutiny after every seven days. The police made a very good case for [a total of] 90 days: because of the complexity of the process, it’s simply not possible for them to gather the evidence in 28 days.’ Is he suggesting that those who voted against 90 days will share some of the responsibility when the police fail to prevent the next suicide-bombing in Britain? ‘I certainly think it puts us at greater risk. But name-calling about who is responsible is not something I would get involved in. What I find distressing is that ... I felt that the Conservatives were playing party politics with the security of the nation. Which I regard as a mistake.’ The Home Secretary is absolutely convinced that, contrastingly, he and the government are merely acting on their duty to protect the nation. Those who think they are actually taking advantage of the fears of the electorate in order to increase the power of the state and sweep away ancient liberties have, he maintains, an ancient conception of the way the world works. The battle between the Law Lords’ ‘ancient’ and the Home Secretary’s ‘modern’ conception of liberty is set to continue. And Charles Clarke is determined to win it.
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