LORD CARLILE OF BERRIEW QC

TUESDAY 11 MARCH 2003

  20. It is a mystery as to where this opposition comes from, but obviously there is considerable opposition about somewhere?
  (Lord Carlile of Berriew) I think the door is fairly open now, and if this Committee were to express a view on it, I suspect that would be very influential.

  21. Thank you. Sticking with arrest and detention, for the moment, when someone is arrested under a Terrorism Act nowadays, is it automatic that any interviews with them are recorded?
  (Lord Carlile of Berriew) Yes, it is. One cannot exclude the unguarded comments that take place in police cars and on the way to police stations, and they have to be verified in the usual way, under the Police and Criminal Evidence Act codes. But I have been to look at this situation in the London area, in Scotland and in Northern Ireland, and, as a rule, and it is an almost invariable rule, the suspect is taken to, respectively, Paddington Green, Govan or Lisburn, to the special centres provided for those purposes. They are all set up in a very particular way; probably the most successful of them, because it has the best facilities, is Govan, in Scotland. There are full facilities for recording, there are full facilities for reviewing by remote video the questioning that takes place, and very considerable protections are built in. I do not believe that now there are many problems arising from questioning of that kind. In Northern Ireland, interestingly there is a considerable degree of trust between the police and the legal profession about the way in which such interviewing procedures are conducted.

  22. It was from Northern Ireland that the initial resistance came to the idea of recording. In fact, I can remember moving an amendment to the 2000 Terrorism Act, which was resisted, on the grounds that it was not practical, for some reason, in Northern Ireland?
  (Lord Carlile of Berriew) The Lisburn interrogation centre, which is a temporary provision because they have been building a new one, seems, to me, to work pretty well, given the physical difficulties of working in portable buildings, and there are one or two other physical difficulties there, like draughts, things literally as basic as that. One has an integrated suite, where the forensics are carried out first, the suspect is taken into a clean room, basically put on a clean groundsheet, everything is removed, and the whole process carries on in that insulated, sanitised way, with full observation. And the legal profession in Northern Ireland seemed, to me, and I have spoken to both parts of it, to be pretty content with it, and the police would rather be scrutinised than accused.

  23. Yes; and what about access to legal representation, when someone is arrested under the Terrorism Act?
  (Lord Carlile of Berriew) Under the Terrorism Act, there is no problem, as I understand it; normal PACE standards are applied, on the whole. It is very rare for non-PACE, ie Terrorism Act, standards to be applied. There will be exceptional cases where, for very important, operational reasons, it is vital that information should not go out too early that a man or woman has been detained, there might be a bomb out there, for example, which one does not want to have detonated; but I do not think there is much of a problem about that part of the system.

  24. But it is optional, is it not, ie it is at the discretion of the police, it is not provided for in codes, is that right?
  (Lord Carlile of Berriew) There is a degree of discretion, but it is a very limited degree of discretion. And since I became the reviewer of the Terrorism Act, as you will have observed from the report, one or two of the parts of the legislation that relaxed the normal PACE standards for Northern Ireland have been removed. The Good Friday Agreement provides me, as reviewer, with the headline word of "normalisation", whatever that means, but I take it to be normalisation to the standards we have generally in England and Wales, and, in practice, I think, in almost every case, those standards are applied.

  Chairman: Thank you. Can we turn now to port and border controls.

  25. Lord Carlile, you have been somewhat critical about some of the operations of port and border controls, and, particularly on accommodation, you have made critical comments about Heathrow and Waterloo Eurostar, although we have had a report which says that, at the other end of the scale, excellent facilities are planned for Coventry Airport and also at Heysham, in Lancashire, where the operator has provided good accommodation. So we have got these two extremes, one assumes. To what extent do you think that the police at ports are being inhibited in their work by the lack of accommodation available to them?
  (Lord Carlile of Berriew) In a word, considerably. Let us take Heathrow as an example. I believe I have this figure right, but no doubt someone will correct me if it is wrong. I believe that 8% of the gross domestic product of the United Kingdom goes through London Heathrow Airport, so it is an astonishingly, hugely important avenue for trade and for passengers. I have watched the police in operation, Special Branch in particular, at Heathrow Airport, and I think that they work in appalling conditions, by and large; they do not have enough space, it is as simple as that. Now as I said in my report on the Terrorism Act, I was puzzled by the conflict of evidence I found between the Metropolitan Police and BAA, who operate the Airport. The police were telling me that there was a problem, I saw the problem for myself. BAA, I went to see the most senior management of BAA, and they said, "Problem; what problem? Nobody's told us about a problem." I am caricaturing it slightly, but that is the essence of it. Let me give you an example of what I saw at Heathrow. I was in the very busy, general international terminal at Heathrow, and a man had been stopped who was a professor, it was said, at a university in the Middle East, and there was considerable interest in him, and the police were working very hard, in an overcrowded room, with a lot of computer screens and a sort of small, temporary interview room in the back, where nobody could have any peace and quiet, making inquiries into this man's credentials. So I said to them, "Where is the man?" and they pointed to him. He was sitting outside the police room, on a public bench, in a public area, they did not have anywhere they could, not lock him up, but just place him quietly in isolation for a time and give him a cup of coffee and make sure he did not get out. He could have got up and left. Yes, there are cameras all over the place, but he could have tried to get up and leave. For him, embarrassingly, because let us assume, as was probably the case, that he was just a genuine professor, on a genuine academic trip to the United Kingdom, people were walking past, looking at him outside a room, where it was pretty plain there were police officers. There he was, under scrutiny; that, incidentally, used to be even worse at Waterloo, but they have changed it now. So there is a lack of accommodation. Some of the newer facilities elsewhere are very, very good. The most striking comparison is made by one visit to Stranraer. In the old port at Stranraer I was taken by a Special Branch officer to see their facilities; now, as you know, Stranraer is a very big freight and passenger port for Northern Ireland. We went to the temporary building, probably put there in about 1965, rusting and decrepit, and he was going to show me the facilities inside it. I do not think it was a put-up job, but the key would not work in the lock, we could not get in, we had to look through the window. There is another port, a couple of miles down the road, which is new, where the police facilities are fairly small but they are more than adequate for what is needed, they are new, the technology is in there. And that is just not an acceptable comparison to have to make, and that is why I mentioned it specifically in my report.

  26. Lord Carlile, you have described that very graphically. If I can just take you back to Heathrow, when was this visit you made?
  (Lord Carlile of Berriew) The visit to Heathrow was about a year ago, getting on for a year ago.

  27. Are you aware, in that year, of any moves to resolve the problems at Heathrow; will you be making another visit?
  (Lord Carlile of Berriew) Yes, I will be making another visit. I am aware of moves to resolve the problem. Officials are working on this, on a fairly constant basis, as I understand it; and I make it my practice, if I see something bad, to go back and see if there has been an improvement.

  28. You have described the operational problems that have been created at Heathrow, Stranraer and elsewhere; have you been provided with any estimates of the required accommodation space which ought to apply at one end of the scale, Heathrow, and at the other end of the scale, at some of the smaller air and sea ports?
  (Lord Carlile of Berriew) I have not been provided with an architect's plan of the space, but I have been provided with general descriptions of the space, and it is not necessarily proportional in size to the passenger throughput. Obviously, if you have a sea port with lorries coming through it, you need quite a lot of space because the lorries and cars have to be searched. At an airport, you need enough rooms to be able to carry out the function properly, but you are talking, in each terminal, about only the equivalent of two Tie Rack shops; the trouble is, the rent from a Tie Rack shop is very high.

  29. Yes, that is what it is all about, is it not?
  (Lord Carlile of Berriew) Of course, Mr Mullin, that is what it is all about. The rent from a Tie Rack shop is high; and I hope Tie Rack will forgive me, probably they will enjoy the advertising. The police should be given the accommodation for nothing, or for very little, because they are protecting the interests of the airport operator as well as of the public.

  30. So you could say that the accommodation should be tied into what is required; and do you think there ought to be a statutory provision to say what should be provided, and it must be provided?
  (Lord Carlile of Berriew) I think there should be a statutory power. I am not sure that we should ever go so far as to set in statutory stone the measurements of the offices provided, because then the minimum will be provided, and there are some places where, to be fair to operators, particularly of ports, better facilities than the minimum are provided. However, I do think that there should be clearer powers for the relevant Secretary of State to enact statutory orders to ensure that the provision that is needed is provided, if agreement cannot be reached for a non-statutory way of guaranteeing that this can be achieved.

  31. Obviously, you will be aware, Lord Carlile, of the recommendations of Her Majesty's Inspectorate of Constabulary, particularly in respect of a National Co-ordinator of Special Branch. Would that improve Special Branch operations at ports?
  (Lord Carlile of Berriew) I am pleased that you asked that question because I think it is a very important one. The structure of Special Branch does cause me some concern, and I read with enormous interest the recent report by Her Majesty's Inspectorate of Constabulary; it does not give a prescription, it gives a choice of prescriptions. I think, any one of the prescriptions would be an improvement on the present situation. I believe that the National Co-ordinator should have at least Deputy Chief Constable status, indeed, Chief Constable status, in my view, would be preferable, because I think it is a very important position. I can see the arguments for having separate Special Branches for each of the forces, and indeed some of the smaller Special Branches are among the very best, as the HMIC report sets out. But there is a need for much greater co-ordination from the public safety point of view; also there is a need to give a better career structure to Special Branch officers. I think I used the term "pasture" in my Terrorism Act report to describe pejoratively some of the people who are put on port duties, they are put there for pasture because they cannot do anything else; it is not that kind of job any more, and indeed, now, to be fair, most of the ports' officers are very dynamic, not necessarily young but very dynamic, and know their job very well, and are very high quality. We need a universality of quality, and I think that would be achieved best by following the HMIC Report. I know that a lot of work is being done, because the group of officials I work with most closely in the Home Office are involved in this, and I am aware, from a letter I received recently, that this is receiving close attention, and I am glad.

  32. I will return to that in a moment, but just to take you back to another one. Are you suggesting, therefore, that there is a general problem with joint working and information sharing between the police and immigration officers at ports which needs to be addressed, or is this one that can evolve?
  (Lord Carlile of Berriew) I do not think there is a problem, I think it would be unfair to say that there was a problem, though I think there is a problem about the technology, they need better computer systems, they need to work more efficiently, and so on. But I think there is a need to speed up the evolution of the Special Branch so that it moves on rather faster than the evolution of the species; and I hope that a committee like this may be able to catalyse the process which is already being undertaken.

  33. Lord Carlile, you will be aware that the Committee's Inquiry into Border Controls recommended that all the existing border control agencies should be combined into a single frontier force. Therefore, would you support the creation of a single ports and borders police force, for the reasons you gave a few minutes ago?
  (Lord Carlile of Berriew) I am undecided about that one. When I first started looking at these issues, in my first three or four months as reviewer of the Terrorism Act, it seemed to me to be self-evident that a single borders force was what was required; now I am less sure, having looked into it further. I do think that the linkage with general policing is very important. Let us remember that Special Branch are dealing to a great extent with drugs and money-laundering as well as terrorism, though terrorism is the top of the agenda. Actually, I think the structure is much less important than the way in which they operate, and if we get hung up on demanding a structure which meets huge resistance from the police establishment we are less likely to achieve it than by making the operational changes which will give you the de facto structure without necessarily the de jure structure.

  34. If your jury is out, therefore, on the single ports and borders police force, do you think there is a case for a combined border control agency which incorporates the Immigration Service, Customs and Excise and the police?
  (Lord Carlile of Berriew) Certainly, I think that there is a great deal of room for fully co-operative working. I went to a small port in Scotland recently and was able to observe how well this can function, with all the agencies in one room. They had one long room, and at the end of the room there were three booths, and that was where they had their private communications systems respectively, for the police, the customs and the Immigration Service. Because there are going to be moments when they are not going to work together, there are bad apples on every tree, and they have to cater for that kind of situation, however rarely it occurs, it does occur from time to time, and there are going to be interests they do not necessarily share, but they work very, very well together.

  35. Lord Carlile, you said that good manifest information can save lives. Why is the quality of manifest information so variable, in your opinion?
  (Lord Carlile of Berriew) The straightforward answer to that is because the information provided when booking your passage varies from carrier to carrier. For example, if you travel by Buzz.com (which has now been taken over) the information that is required by Buzz is very detailed. There is a particular reason for that, as I understand it; there is a captain, a senior official in Buzz, who has some relevant police experience. Generally, with all Internet bookings, a lot of information is provided; on the other hand, if you wander up to Dun Laoghaire harbour and you go into the ticket office and buy your ticket and get on the ship to Holyhead, there is going to be a lot less information. I saw a striking example at Holyhead, in which the only information provided about a car with four men in it was one word, O'Connor; well there is quite a lot of that about, is there not, so really it was not terribly useful manifest information. On the other hand, if someone climbs off an easyJet, and their name, their date of birth, their credit card details, etc., are there, because you just cannot get on without it, then there is far more information, which makes it easier for the police. And when one is dealing with people coming from different parts of the world, if we are not just talking about the Irish issue, as much information as possible on manifests is desirable. The Government, as I understand it, and certainly Home Office officials, are anxious about this manifest situation. They would rather achieve what they need to achieve by voluntary means than by statutory enforcement, because they will just get the lowest common multiple if it is by statutory enforcement. All I want to say really about manifests is that the information has to be adequate to protect the public, when we travel out and in and when other people travel in and out.

  36. In your view, what is adequate; what is the minimum?
  (Lord Carlile of Berriew) I would not pretend to be the absolute expert on what is adequate information, but, in my view, it should involve at least a full name, a permanent address, a date of birth, which is a crucial piece of information, and a passport number, enough information to enable some cross-checking to take place on the developing databases which are going international, albeit with some difficulty, and certainly on the domestic databases.

  37. Do we require primary legislation to develop that minimum standard?
  (Lord Carlile of Berriew) We do not require primary legislation, because it can be achieved voluntarily. As you know, the carriers are pretty well organised, and their representative associations speak to Government all the time. I inquired into this as part of the exchange of views with officials before I wrote my Terrorism Act report, and I was discouraged from being too proscriptive about this, and indeed made some alterations to an early draft of my report with this in mind. I think this is one of those occasions when one says that the end justifies the means, and as long as statutory powers are there in reserve, which they are now, I am all in favour of trying to achieve the goal by the best means possible.

  38. Would it not be preferable to have the manifest information either voluntarily or by legislation rather than having identity cards, which, presumably, those who were terrorists would choose not to carry anyway?
  (Lord Carlile of Berriew) I think the identity cards issue is an extraordinary difficult one, and much more intellectually sophisticated than sometimes we give it credit for. I had a conversation, which I think I mentioned in my report, with two young French undergraduates, in which I sought to provoke them into expressing the view that having to carry an identity card was an outrageous breach of their fundamental rights and civil liberties. These were two bright and intelligent Frenchmen, whom I know well, and they did not know what I was talking about, they could not begin to understand the issue. I think the fact is that they have them and we do not; now whether we should is a matter for people other than myself, because, fundamentally, I believe, this is an issue for the House of Commons, in the end, but I do not think it is an easy question. It is true certainly that if we had a simple form of identity card, different from the French identity card, which technologically is now a touch antediluvian, it would facilitate certain things in our lives, particularly for our sons and daughters, for example, when they want to go and get a drink in a public house, simple things like that, or when they want to prove their age to the police, because some of them look younger than they are. But whether we should do that is not a question for me, really.

  39. Can I turn to security checks for aircraft crew; can you expand on the mixed messages that you received on the adequacy of those security checks?
  (Lord Carlile of Berriew) Yes, and I am going to have to do some more work on this. I enquired closely at Heathrow as to the checks on aircraft crew, and it seems to me that a rogue organisation that was able to infiltrate an airline might be able to infiltrate crew at Heathrow Airport—and I am not singling out Heathrow, it is just one I have been to and asked the question, so it may apply elsewhere—who would not be subjected to as rigorous security checks as you or I when we go to that airport as ordinary, fee-paying passengers, and that causes me some concern. When I asked Special Branch about this, Special Branch officers—I am talking about working bobbies now, I have a great belief that if you want to know what is really going on in the police force ask a detective sergeant, or a detective constable—they are the guys who say to me, "Yes, there is a risk, and it needs some attention." On the other hand, there are certain airports in this country, Liverpool is one, London City Airport is another one, and I must say that one because it is a BAA airport and I do not want to be unfair to BAA, where I believe there are rigorous checks, as rigorous checks on crew as on anybody else. My real concern is about the big international airports, and it would apply, of course, as much to airports outside this country as airports within this country.