LORD CARLILE OF BERRIEW QC

TUESDAY 11 MARCH 2003

  40. Can you say, in your opinion, what is the level of threat from terrorism via small ports and airfields?
  (Lord Carlile of Berriew) Very high. Let me deal with small airfields first, because some newspapers latched on to my comments about small airfields. Having been an MP, I should have realised what I was doing. I received dozens of letters and e-mails from very nice people who are private pilots, saying that I was committing calumny against them, and I did not mean that at all. Because I recognise, and please may I say it now, that private pilots are a sort of Home Guard, and will be the first people to report something unusual they see in the air, so I recognise their value. However, the small airfields were described to me by a working bobby as the soft underbelly of ports policing, because there are so many airstrips. Of greater concern to me is the very large number of small sea ports, coves, and the fact of our being an island; now, of course, we cannot avoid being an island, but I think we could increase the level of policing of ports and coves. If you were to look at the performance of the police in Dumfries and Galloway, which I think is the smallest force of all, apart from possibly the City of London, they have an excellent system of policing those ports, but it is a very particular issue there. They have developed a sort of community policing system which draws on information from many members of the public who live at strategic points, so that information is passed on, on a routine basis, and suspicions are investigated very frequently; it is an excellent system. You have to remember though that lethal material could be brought into this country on a small yacht, into a small harbour, anywhere round the coastline; it is impossible to provide a foolproof system. It is always going to be a sieve, the policing of our small ports, but I think it should be a sieve with a finer mesh than we have got at the moment. Once, when I was on holiday in Cornwall with my family, I found a sarin canister on a beach, a popular tourist beach, in north Cornwall, and reported it to the police via the local kite shop. I was delighted by the response, though I was not prepared to admit to all the other holidaymakers on the beach, two hours later, that I was responsible for the beach being closed for the day and the helicopter hovering overhead. But something of that size, it was the size of an ordinary beer barrel, which is potentially lethal, could be carried on a 30-foot yacht, having been offloaded from a larger boat out at sea; so that is a very real danger and causes me an enormous amount of concern. And I think there is room for improvement in the methodology of the policing of small ports and coves.

  41. Have you seen any improvements since September 11?
  (Lord Carlile of Berriew) I was appointed to this job on September 11, 2001, by chance, about three hours before all hell broke loose, so I cannot speak of improvements very much comparing what was before September 11 and now. I have absolutely no doubt that the police, right round the country, are doing everything they can within their existing resources, methodology and organisation, and here we are returning to the Special Branch question once again, to improve the situation, but there is, I think, quite a long way to go.

  42. Very briefly, on the policing of the small ports around the coast of our country, do you think there ought to be a recommendation from the Home Secretary, and perhaps additional funding that goes with it, to strengthen, and indeed perhaps introduce, if they do not exist already, river and coastal police on vessels on our rivers and around the coast?
  (Lord Carlile of Berriew) I would not like to give a categorical answer to that, because I have not done a measurement of the effectiveness of police on boats, as opposed to police on land. One's instinctive reaction would be to say that police on vessels around the coast and on rivers, and so on, are an integral part of careful policing of our coastline when anti-terrorism activity is so important to the protection of the public. I think the answer I would give really is that if we had a more integrated approach to ports policing then we would be able to determine more successfully what proportion of resources should go towards that kind of activity.

  43. Can I ask that when you do your next report perhaps you could consider that, alongside the excellent example you told us about the Scottish police force?
  (Lord Carlile of Berriew) Yes. Thank you for that.

  44. Just turning to Annex F in your report, arrests under the Terrorism Act, I see that in the year from February 2001 to February 2002 there were 131 arrests; what does "Arrests after Examination" mean, is that in addition?
  (Lord Carlile of Berriew) Somebody is stopped at a port by a police officer, either on information or what some of them rather endearingly call "copper's nose", which is a very important part of all this, and they are examined; after that, an arrest can take place. So that explains that column.

  45. So the 34 in addition to the 131, or they are part of the 131?
  (Lord Carlile of Berriew) No, they are part of the 131.

  46. Of whom 41 are "Charged", 19 out of the 131 with offences relating to terrorism, and then 26 under "Other Legislation", just criminal activity of one sort or another?
  (Lord Carlile of Berriew) It could be anything; receiving stolen goods is often the example.

  47. Twenty-two for immigration offences, is that right?
  (Lord Carlile of Berriew) Yes.

  48. It says 37 for "Irish Terrorism". I do not quite understand. If 41 are "Charged", are you saying that the 37 come out of that 41; this is under "Irish Terrorism" now?
  (Lord Carlile of Berriew) No. That is a separate head.

  49. Do they come out of the 131?
  (Lord Carlile of Berriew) They are 37 of the 131.

  50. So you could add them then to the 19 who are charged under the Terrorism Act as being terrorist-related?
  (Lord Carlile of Berriew) Yes.

  51. And then "International Terrorism"?
  (Lord Carlile of Berriew) We are talking about arrests, not charges, here. You see, the "Charged" are 41, but there are far more arrests than charges. So you may find that people are being arrested under more than one head.

  52. I see. But, basically, of the 131, 19 end up being charged with something relating to terrorism and 22 turn out to be immigration offences, or alleged immigration offences?
  (Lord Carlile of Berriew) Yes; which, I would suggest, is quite a good strike rate.

  53. That was what I was going to ask you. There used to be a lot of criticism under the old Prevention of Terrorism Act that lots and lots of people were picked up for trawling purposes and their address books were photocopied and they were sent on their way?
  (Lord Carlile of Berriew) It works much better now.

  54. It does, does it?
  (Lord Carlile of Berriew) Yes. I have spent quite a lot of time literally standing at police officers' shoulders, seeing what they do. They stop a huge number of people, the figures are there, it is getting on for a million stops in a year, and so if you were to take the number of people charged as a proportion of the stops it is very small, but when you take the filter from the stops then it is a reasonable proportion. And the average stop, if I can give you a simple example, a real one, a woman was walking through Liverpool Airport, she was stopped, she was asked where she was going, she said something like, "This is the fourth time this year," with a smile, she was asked where she was going, she gave the name of the hotel she was going to, she was asked what she was doing, she described her occupation, and she continued. Now that is a stop. That is the first stage of the filter process, and, by and large, it is done with considerable skill, and occasionally even charm, there are very, very few complaints. It is very difficult to get to the complainants, but I did find one who was prepared to correspond with me, because he was a businessman who felt very strongly about it, and action had been taken before I was involved on that complaint.

  55. Just finally on the Terrorism Act 2000, have you received any positive feedback from the Home Office about your recommendations?
  (Lord Carlile of Berriew) Yes. I have now produced three reports on the Terrorism Act 2000. They accepted a procedural recommendation in my first report on Part VII, which relates to Northern Ireland. They have said to me in every case that they are at the very least consulting on recommendations for change. How they would react if I were to recommend, for example, that the Diplock courts should be abolished I am less certain, but after a good deal of inquiry into that issue I have not.

  56. But it remains a possibility for the future?
  (Lord Carlile of Berriew) Yes.

  Chairman: Shall we turn now to the Anti-terrorism, Crime and Security Act 2001, where you covered, of course, only Part IV, Sections 21, 22 and 23, which permit indefinite detention without charge of persons who are certified to be suspected terrorists and who cannot be removed because of Article 3 of the European Convention.

  57. Just before that, just from listening to your answers, I wanted to ask just one question. It seems that your role includes reviewing the security aspects but, with this new work, human rights issues as well. Do you get enough support, in terms of advice about security and small ports and airports; these are quite technical areas, do you have enough technical support on security issues?
  (Lord Carlile of Berriew) Yes. I hesitate in answering the question because I am an independent reviewer and I guard my independence jealously, and I am very happy to be briefed but I am not happy to be told. What I would say is, in direct answer to your question, I can ask anyone anything, and I have yet to be refused an answer or a briefing. I believe that I am briefed at as high a level as I need to be briefed. I mentioned that last year I met with the Director of MI5, and arrangements are being made now for me to meet with Eliza Manningham-Buller. I have access to the Home Office, free access to the relevant part of the Home Office, as in I have a pass and I can go in, and, when I go in, often I am asked by the head of a relevant section to stop and have a chat and we talk through various issues. So on both a formal and informal basis I am pretty satisfied with what I receive and would not hesitate to ask for more. What I think I can assure you is that if I asked for something of that kind and was refused I would put it in my report.

  58. Just one general question on the Anti-terrorism, Crime and Security Act. From your report, there is a very clear sentence, on page 14. "From the material I have seen, it is a certainty that there remain in the United Kingdom individuals and groups who pose a present and real threat to the safety of the public here and abroad." I was just wondering, and maybe this goes beyond your role, it seems to me that we may be stuck with these detention provisions for a very, very, very long time, because we cannot deport these people; while September 11 woke everyone up to the threat, it did not actually change the nature of the people who were here or who were trying to come here. Is it your view that we may be stuck with this element of the Act, the Home Secretary's power to detain, for a very long time, or would you be more optimistic?
  (Lord Carlile of Berriew) I agree with you completely, I think we may be stuck with it for a long time. Of course, the Act runs out in 2006, but that does not mean there cannot be a new Act that does much the same. There is an international dimension to this. I think the Privy Counsellors committee is carrying out some interesting background work into looking at the differences in approach to deportation to certain countries, I do not think I can properly say which countries, but to certain countries, by different members of the European Union. It would not surprise you to know that the French possibly take a more relaxed view to deportation to certain countries, Article 3 wise, than we do, and the Germans likewise. And I suspect that there may be room for greater flexibility in the future in relation to some countries; that may depend, of course, upon the nature of Governments in those countries, really that is a political and diplomatic issue. But you have quoted accurately, of course, from my report. I would not want to see some of the people about whom I have read, open and closed material, out and about on the streets of the United Kingdom. I think the Home Secretary had no option but to detain them, once the Act was enacted; and then we enter the gate of the prison, of course, the whole issue about how they are detained, for how long they are detained, and the problem of keeping people who are not charged without limitation of time. What you say is absolutely right, Mr Cameron, they could be there for a very long time.

  59. Do you suspect that, in order to do this, we had to opt out of the derogation of Article 5 of the ECHR, using Article 15, which says you can do this only in time of war or other public emergency threatening the life of the nation? That is going to be challenged. I suppose I am seeking free legal advice, but do you think it will be sustainable to say, year after year, "Yes, there is a public emergency threatening the life of the nation"?
  (Lord Carlile of Berriew) It is a very interesting question, and I am not going to answer it. Just to be historic about it, the Special Immigration Appeal Commission ruled the derogation was unlawful, was plainly unlawful (Mr Justice Collins). The Court of Appeal ruled that the derogation was absolutely, plainly and, beyond peradventure, completely lawful. It is on its way to the Judicial Committee in the House of Lords, the House of Lords will have to rule; it will go from the House of Lords, as a certainty, to the European Court of Human Rights. So it would be an extremely bold lawyer who was not involved in the case who would even dare to venture an opinion about the derogation. What we have to assume is that there is a real prospect that the legislation which was introduced by the Government was not introduced lightly, and so the derogation may well be upheld; and the whole of my approach to this Anti-terrorism Act issue that I have to review has to be on the basis that the derogation subsists. Happily, I will be out of a job if the derogation is ruled unlawful, I will not have anything to review at all.