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Last Updated: Sunday, 16 October 2005, 11:15 GMT 12:15 UK
Terrorism legislation
On Sunday 16 October 2005 Andrew Marr interviewed Lord Falconer, Lord Chancellor

Please note "BBC Sunday AM" must be credited if any part of this transcript is used.

Lord Falconer
Lord Falconer, Lord Chancellor

ANDREW MARR: Before a bit more of that, the Lord Chancellor, Charlie Falconer is here, welcome to the programme Lord Falconer.

Now in the Lords you have got a fair amount on your plate, I guess the, the most immediate controversy at the moment, over the terror laws, is going to be this 90 day business.

It really doesn't look as if it's going to be easy to get this through parliament, does it?

LORD FALCONER: Well I think it is something that has got to be a real debate about it. A lot of people have intervened in the debate already, the two people who I think have been most telling in relation to it is first of all the police, they talk about the need for 90 days in order properly to investigate terrorist suspects; they point out that unlike most crimes very frequently you can't wait until you're quite close to the crime because the risk that imposes. The other person is Lord Carlile. He was somebody appointed by the government -

ANDREW MARR: He's come down on the other side rather.

LORD FALCONER: No, I don't think he has. Read what he says. He says it's perfectly clear that there are a small number of cases where 90 days is appropriate but he goes on and says but if you are holding somebody without charge for 90 days what you need to look at it is the terms of judicial supervision of that. And I think it is there, namely the judicial supervision, we should be looking at.

If there is a judge overseeing the process on a regular basis, making sure that there is no abuse and making sure that it only goes on as long as necessary, then that seems to me to be the area where we can debate how you ensure that 90 days is the right figure.

ANDREW MARR: There are a lot of people who think that 90 days is simply too long -


ANDREW MARR: - and you can't let the police totally dominate the debate because it's -

LORD FALCONER: Absolutely right.

ANDREW MARR: - ... in politics as all the rest of it.


ANDREW MARR: So is there any possibility, do you think, of coming back a bit from that 90 days ... countries who have pretty tough anti-terror laws don't have that.

LORD FALCONER: Yeah. The systems are all different, so it's quite difficult to compare one system with another. What is the answer to the dilemma where there are probably a very small number of cases where 90 days is about right - which is what Carlile says - but you are very, very worried about it being used too much.


LORD FALCONER: And I think the answer is that this is a, this is where the focus should be, is how do you build in safeguards and Lord Carlile had a whole list of safeguards that we built in. Because, unlike the way that it was reported, in fact Lord Carlile is saying 90 days is okay subject to those safeguards. And so in fact -

ANDREW MARR: So the point - sorry - the point is that you could bring in, because you said there must be a proper discussion -


ANDREW MARR: - and there's no point in having a proper discussion if the government doesn't move, or says in advance it's not going to move in any way on any aspect of this.

LORD FALCONER: Of course, yes.

ANDREW MARR: And therefore the area that you are prepared to move on is greater judicial oversight, possibly, greater judicial involvement early on in whose banged up for 90 days?

LORD FALCONER: I don't think you can ask judges to say who should be arrested but currently what you've got in the 14 day period is from time to time a magistrate looks at it. What I think we need to do is more explanation to a more senior judge in order to provide what people who regard as legitimate safeguards because -

ANDREW MARR: Will the senior judge in those circumstances be able to turn around and say I'm sorry, no, you do not have the evidence to keep this person for this long, you're abusing this new power and he must, or she must, be allowed to go free?

LORD FALCONER: Yes. They will be able to say you've got to release this person now. And that sort of oversight would ensure it would only be those very few cases where you need to keep somebody for 90 days and you would be sure it was done on a proper basis.

Now that looks to me like finding a very sensible balance between the need for the 90 days - because Carlile is independent, the police also say it, but having an independent person saying yes 90 days does look right for those very few cases, but making sure there's proper oversight looks like a sensible balance.

ANDREW MARR: So maybe the move is to 90 days but very rarely and overseen much more toughly by the judiciary, possibly.

LORD FALCONER: That's - that's - that's an area we need to debate.

ANDREW MARR: Right. The other big issue, I suppose, on your plate at the moment, is the law relating to religious hatred -


ANDREW MARR: - where there is a great deal of anger building up in the House of Lords ... saying this is really, it goes too far, it's inappropriate, it's a bit blundering, it is going to quite deeply interfere with free speech in this country.

LORD FALCONER: And there was, and I was there at the debate in the Lords and there was that feeling. Now I think that feeling, to some extent, is not focusing enough on what the bills does.

Currently, under the law it is a criminal offence to stir up hatred against Jews or Sikhs, which have a profound religious basis. It is an anomaly that it is not a criminal offence to stir up hatred, for example, against Christians, as some people do, or stir up hatred against Muslims as other people do.

ANDREW MARR: (OVERLAPS) I guess - I guess the question is what is stirring up hatred, because there are profound differences, I mean a lot of evangelical Christians, for instance, believe that if this law goes through they will not be able to preach and argue against Islam.

LORD FALCONER: They are completely wrong about that. The one thing that is absolutely clear is that a debate about the merits of particular religions is not remotely banned under this.

Abusive, insulting behaviour designed to stir up hatred is not the same as a debate about the merits of Christianity versus Islam, for example. But if you are, for example, on your website saying that all Christians are perverts and you should hate them, that seems to me to be something in a different category all together.

ANDREW MARR: You're a legal man -


ANDREW MARR: - how do you respond to Lord Woolf, who this week was pretty angry about the general direction that the government and you yourself were going in regard to the judiciary ...

LORD FALCONER: Well there was that, there were two press conferences at the beginning of the week, one given by the Prime Minister and one given by the Lord Chief Justice.

Read the words of what both of them said and they were both legitimately and in a measured way saying there is no conflict between the judges and the politicians. What the judges do is determine what the law is and ...

ANDREW MARR: There's a certain, there's a certain not over this line -


ANDREW MARR: - atmosphere about what Lord Woolf said, you know -

LORD FALCONER: Well Lord Phillips, the person who was - you're thinking about the new Lord Chief Justice - he was, he was being asked questions, do you think it's right that politicians should browbeat judges like - and the actual example given by the press question was Michael Howard - and he said of course it isn't -

ANDREW MARR: Oh I see, okay.

LORD FALCONER: But he's saying, basically, we know what our role is, we politicians know what our role is, our society works well on that basis -

ANDREW MARR: So it's not, it's not as ropey a relationship as ...

LORD FALCONER: Certainly not.

ANDREW MARR: I must ask you about one last thing before you go.


ANDREW MARR: Which is this story in the Sunday Times about moving the House of Commons and the House of Lords up to Hampshire in the case of a national terror attack or an emergency. Do you know anything at all about this plan?

LORD FALCONER: Nothing whatsoever. No.

ANDREW MARR: Would you like to go to Hampshire?

LORD FALCONER: I'm perfectly happy where we are, thank you, in parliament.

ANDREW MARR: And I should also ask you, finally, bird flu, legally, in terms of an national emergency, if things become really grave, are you entirely happy that everything is in place?

LORD FALCONER: We've got the plans, Sir Liam Donaldson's interview with you was a very clear exposition of the fact that there are certainly risks there. We are prepared, we are as well prepared as we can be, the World Health Organisation have said we've got a good plan, we've got to be clear that we've got to take all steps necessary to protect the population.

ANDREW MARR: Lord Falconer, thank you very much.


NB: this transcript was typed from a recording and not copied from an original script.

Because of the possibility of mis-hearing and the difficulty, in some cases, of identifying individual speakers, the BBC cannot vouch for its accuracy

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